2. Provision of Services:
2.1. Regulation: The rates set forth in the Agreement are subject to the imposition of new regulations, modifications of existing regulations, new interpretation, application or enforcement of, or exercise of authority related to, any regulation or finding of any federal, state and/or local regulatory agency, legislative body, or court of competent jurisdiction, including, without limitation, the imposition of any charges, surcharges, and/or taxes in reliance on or as a result of the same (“Regulatory Change”). TMPros reserves the right, at any time (including retroactively) to (i) to pass through to Customer all charges, surcharges or taxes directly or indirectly related to such Regulatory Change, and/or (ii) modify the rates and/or terms and conditions of the Agreement to reflect the impact of such Regulatory Change, including, without limitation, the impact of any actions by third parties in connection with such Regulatory Change.
2.2. Tariffs: “Tariffs” shall refer to TMPros’s applicable tariffs. The Agreement incorporates by reference the terms of each such Tariff to the extent Customer subscribes to Services provided by TMPros which are covered by any applicable Tariff. The Agreement may be superseded by a Tariff filed with the appropriate regulatory agency, which Tariff may contain such modifications of the provisions of the Agreement as TMPros deems appropriate. TMPros may modify its Tariffs from time to time in accordance with law and thereby affect Services furnished to Customer hereunder, except that the terms and conditions of the Agreement shall supplement, to the extent not inconsistent, Tariff terms and conditions. If any of TMPros’s applicable Tariffs are cancelled during the Term of the Agreement, such cancelled Tariff(s) will be deemed to be incorporated by reference into the Agreement on the effective date of cancellation, as supplemented by any non-inconsistent product descriptions, definitions, prices and other terms and conditions contained in the Agreement or similar document posted by TMPros on an TMPros website accessible by Customer and may be modified by TMPros from time to time and thereby affect the previously tariffed Service furnished to Customer.
2.3. Availability of Facilities: TMPros’s Telecommunications Service (“Service”) is offered and furnished subject to the availability, in TMPros’s sole judgment, of all necessary facilities, including those acquired or leased by TMPros from other entities.
2.4. Reseller: TMPros is acting as a reseller/network provider of certain services, facilities and equipment provided by third parties. TMPros may be unable to initiate service due to facilities or other constraints of third parties. Further, TMPros cannot guarantee any requested turn up/start of service date, or ensure that TMPros or its underlying network/facilities providers can achieve any projected turn up/start of service date. Any statement or representation to the contrary shall be deemed null and void.
2.5. Right to Alter Service: In its sole discretion and without liability to Customer, TMPros may: (a) alter the methods, processes or suppliers by or through which it provides Service; (b) change the facilities used to provide Service; or (c) substitute comparable Service for that being provided to Customer. If necessary due to the potential impact on affected Customers, TMPros will furnish prior notice of any alterations, changes or substitutions.
2.6. TMPros’s Right to Block, Discontinue, or Surcharge Service Without Notice to Customer:
2.6.1. Fraud, Network Blockage or Degradation: TMPros may discontinue furnishing Service by blocking traffic to or from certain countries, cities, NXX exchanges, or individual telephones; by blocking call origination; or by blocking calls using certain Customer authorization or access codes; and/or cancel Customer’s account immediately and without notice, without TMPros incurring any liability whatsoever, if TMPros deems that such action is necessary to prevent or protect against fraud, or to otherwise protect TMPros’s personnel, agents, facilities or services, for reasons which include but are not limited to: (a) violation of TMPros’s AUP; (b) use or misuse of the Service in a manner that results, or could result, in network blockage or other degradations that adversely affect the Service furnished to Customer or to other existing or prospective customers of TMPros; (c) manipulation, change, or in any way modifying traffic line records, including the Calling Party Number (“CPN”) or Automatic Number Identification (“ANI”); (d) excessive termination to a single central office in excess of that location’s termination capacity; (e) sequential dialing; (f) call blasting; (g) excessive incomplete calls; (h) improperly formatted SIP messages; (i) uses, or threatens to use any of the Services for any unlawful or fraudulent purpose or otherwise violates the terms of the Agreement; or (j) if TMPros is ordered or requested to terminate service by a governmental entity. Regardless of whether or not TMPros blocks service, Customer shall still be fully liable for all fraudulent calls made on Customer’s Service.
2.6.2. For Financial Cause: TMPros may immediately and at any time terminate the Agreement, discontinue service, cancel an application for service, cancel the Customer’s account, or require Customer to deposit funds as security, without incurring any liability, for any of the following reasons: (a) Customer fails to pay any amount owed to TMPros when due; (b) Customer’s failure to comply with any material term or condition of this Agreement; (c) For usage by Customer beyond any credit limit or prepaid balance limit imposed by TMPros; (d) If, in TMPros’s sole judgment, any aspect of Customer’s payment arrangements with TMPros appear to be fraudulent, including false or misleading credit information, or Customer’s use of a credit card that has been reported as misused or stolen; (e) Customer’s ability to pay, or if, in TMPros’s sole judgment, Customer’s payment arrangements with TMPros appear to be inadequate to meet any of Customer’s obligations to TMPros coming due; (f) Customer’s filing of any voluntary or involuntary Petition in the bankruptcy court which names Customer as the debtor; or (g) Customer communicates any intent to breach, or to not comply with the terms of this Agreement, including but not limited to payment for Services at then-prevailing rates.
2.6.3. Customer Obligation to Pay Through Disconnection Period: Customer shall be responsible for payment of all non-usage based charges through any disconnection period.
2.6.4. Fair Use Policy for Unlimited Calling: TMPros’s fair use policy (“Fair Use Policy”) is to prevent abuse, fraud or unreasonable exploitation of unlimited local and long distance calling (“Unlimited Calling”) and unreasonable overutilization of TMPros’s facilities. TMPros’s Unlimited Calling, both long distance and local, offered in conjunction with TMPros’s local service products, is intended solely for normal commercial use. TMPros’s Unlimited Calling for its local service products is designed only for continuous live dialog between two individuals. Unusual calling patterns, excessive called numbers and/or consistent excessive usage will each be considered an indicator that usage is exceeding normal standards. TMPros’s Unlimited Calling for its local service products may not be used for auto-dialing, continuous, or extensive call forwarding, excessive conferencing, inbound/outbound centralized or distributed call center activity, inbound/outbound customer service, telemarketing (including charitable or political solicitation or polling), fax or voicemail blasting, or for continuous or extensive chat line access, or as an open telephone line as a monitor, intercom or transcription service. TMPros has other plans applicable for such applications and businesses. It will be considered outside of TMPros’s Fair Use Policy for Unlimited Calling on an TMPros local service product for a Customer to exceed more than one-thousand (1,000) inbound, outbound or toll free local or long distance minutes per month per subscriber line, SIP trunk, hosted seat, PRI/T-1 trunk/DS0 or analog line, etc., in aggregate (“Normal Usage”). For example, for a Customer who contracts for 50 hosted seats, if the Customer’s total monthly local/long distance inbound minutes or local/long distance outbound minutes (as applicable) exceeds 50,000 minutes / per month (1,000 minutes/hosted seat x 50 seats), then such usage exceeds the Fair Use Policy. For Unlimited Calling on an TMPros local service product, TMPros shall apply a surcharge of up to $0.035 per minute of use to the number of minutes by which Customer’s usage exceeds this normal usage. The minutes for call forwarded and remote call forwarded calls are allocated to the Customer’s inbound and outbound minutes for each call that i) comes into an TMPros-supplied DID and ii) is then rerouted outbound to a telephone number outside of TMPros’s network.
2.7. Service Reconnection Delay: If service is suspended and/or disconnected and then resolution of the issue occurs, the process of reconnection of the service may take up to sixty (60) business days.
2.8. Delivery of Circuit: Unless specifically stated otherwise in an TMPros order form, all loop installs are quoted with delivery to the Local Exchange Carrier (“LEC”) building Minimum Point of Entry (“MPOE”). Customer is liable for any loop extension (“Demarc Extension”) from the LEC MPOE. Customer is responsible for ensuring that all Demarc Extensions are completed, ordered and approved by the LEC prior to any local loops being dropped by the LEC at Customer’s MPOE. In the event Customer fails to complete the Demarc Extension or order appropriate Demarc Extensions prior to the LEC’s local loop drop, Customer shall be fully responsible for all associated costs as of the date of local loop drop. For Ethernet services, Customer is responsible for ensuring there are adequate facilities at the premises’ primary MPOE to receive TMPros’s service, including power and backboard / rack. The Customer will also be responsible for providing any wiring extension beyond the primary MPOE. Customer will be responsible for any additional unforeseen construction costs including, without limitation, inside wiring administration and special installation costs.
Cancellation charges as set forth in the TSO shall be applied in the event Customer has not complied with the requirements in the Ethernet Service Installation Guide, or excessively delays installation. TMPros will pass through any costs TMPros incurs that are associated with extending wiring beyond the premises’ primary MPOE. In the event the Customer chooses not to make the necessary upgrades, the Customer shall nevertheless be responsible for all associated cancellation charges. Where applicable, TMPros will deliver Circuit Facilities Assignment (“CFA”) at the underlying carrier designated building and suite/cage. It is the Customer’s express responsibility to order and pay for all in building local loop circuits or cross-connects required to connect Customer’s facilities to the underlying carrier assigned CFA.
2.9. Expedited Installation: Customer acknowledges that requests and payments for an expedited installation do not guarantee that the underlying provider and/or local exchange carrier will meet a requested installation date. Requests for expedited installation may expedite the process by which Customer’s order is serviced by the underlying carrier and/or local exchange carrier, but TMPros cannot guarantee that any installation will occur by a specified date. TMPros cannot refund any payment made for expedited service in the event that an expedited service date is not met.
2.10. Service Availability: The Service is available throughout the Term, except in the case of scheduled maintenance of the TMPros network and/or its underlying carrier’s networks. TMPros will use commercially reasonable efforts to provide prior notification via electronic mail (“email”) to Customer regarding any scheduled maintenance of the Service. TMPros may interrupt its provision of Service for unscheduled emergency maintenance without notice to Customer or Customer’s customers. TMPros reserves the right to monitor and/or record certain calls for the purpose of quality control or trouble-shooting service issues, subject to state and federal privacy laws.
2.11. Valid ANI: Where Customer’s equipment allows for manipulation or changing of the outpulsed Automatic Number Identification (“ANI”) or calling party number (“CPN”), Customer is required to pass a valid originating ANI or CPN that is owned by the Customer. For purposes of this paragraph, “valid” ANI or CPN shall mean ANI or CPN in an industry standard format that correctly identifies the call as originating from the geographic area where the Customer is physically situated.
2.12. 900, 500, 700, or Invalid Numbers: Customer shall not pass 900, 500, 700, or invalid numbers (including 000-000-0000) as CPN.
2.13. Local Number Portability: TMPros utilizes the Local Number Portability database maintained on behalf of the telecommunications industry by the Number Portability Administration Center (“NPAC”) for validation purposes. As a result, the number dialed by Customer may return porting information from the NPAC database which results in calls terminating to different physical locations, and/or Operating Company Numbers (“OCN”) and Local Access Transport Areas (“LATA”) that may differ from the dialed number. If (1) the Customer’s rate plan does not include flat-rate pricing, or (2) for the purpose of calculating high cost area surcharges on flat-rate plans, calls terminating to ported telephone numbers will be rated based on the ported number information, and not the dialed number. TMPros does not provide Customer access to the NPAC database. Customers wishing to determine whether a dialed number has been ported prior to dialing must arrange independent access to the NPAC database.
2.14. OCN Information: All calls billed under plans other than flat-rate plans will utilize OCN information provided by Bellcore or similar database providers. OCN’s are determined by criteria including the NPA/NXX of the number dialed, as well as the NPAC database. TMPros shall not be liable for the accuracy of any OCN information, which may be utilized by Customer for any purpose, including but not limited to rating, scrubbing or sorting.
2.15. Toll Free Directory Assistance: Upon Customer’s written request and to the extent available to TMPros, Toll-Free Directory Assistance listing is available for Customer’s Toll-Free numbers provided by TMPros. Due to the fact that Toll-Free Directory Assistance is provided through an arrangement with a third party, the provision of Toll-Free Directory Assistance by TMPros is subject to the policies and procedures promulgated from time to time by such third parties. Customer understands that any Toll-Free Number listed with Toll-Free Directory Assistance is not published in any written directory but is only available on either an online or call-in basis. This service will be charged at such third party provider’s then prevailing rates, which are subject to change without notice at any time.
2.16. International Routes: Customer is aware and acknowledges that TMPros has no control over the international routes of its underlying providers. Therefore, TMPros cannot assure or guarantee calls/voice quality for all international traffic. Customer agrees that all calls completed will be considered valid and billable, regardless of call quality.
2.17. Blocking of International Calls: If Customer wishes to block International calls, Customer must ensure that such request is in writing, in the body of the TSO for the services for which International blocking is to be applied. Any such blocking request that is not in writing will not be valid. For the purpose of call blocking, “International” refers only to those calls using a 011 prefix. Thus, for example, phone calls from the United States to Canada are not International calls and cannot be blocked. It is Customer’s responsibility to understand the limits on any call blocking functionality. Any request to TMPros to unblock international calls must be in writing.
2.18. Internet Services: All Internet services provisioned under this Agreement or any TMPros TSO are provided as information services, and not as telecommunication services for the purposes of regulation.
2.19. Rights to IP Addresses and Circuits: Upon termination of the Agreement or any TSO, or cancellation of any Service, all rights to circuits ordered by Customer will revert to TMPros, and Customer shall have no rights to the continued use of such circuits even if TMPros ordered such circuits through another provider. Similarly, TMPros does not represent that IP Addresses used by Customer in conjunction with the Service will be available to Customer after termination or cancellation. Customer agrees that IP addresses are not guaranteed, transferable or provided for further distribution.
2.20. 911 Services: Customer must have at least one 911-enabled TMPros DID for each location, with that location’s correct address populated in TMPros’ 911 database, for 911 database services to operate properly for DIDs utilized at that location. For 911 service, Customer will be required to register the physical location of Customer’s equipment (desk phone, softphone, videophone or mobile phone) with TMPros and agree to call TMPros customer service to update the location whenever the physical location of service for a particular telephone number changes. Customer may register only one location at time. IF CUSTOMER DOES NOT UPDATE THE PHYSICAL LOCATION OF CUSTOMER’S EQUIPMENT (DESK PHONE, SOFTPHONE, VIDEOPHONE OR MOBILE PHONE) WHEN IT CHANGES, CUSTOMER’S 911 CALLS MAY BE SENT TO AN INCORRECT EMERGENCY CENTER.
FOR USERS OF THE TMPROS KEY SYSTEM TELEPHONES, TO PRESERVE THE ABILITY OF 911 OR E911 PUBLIC SAFETY ANSWERING POINT (“PSAP”) PERSONNEL TO RESPOND PROPERLY, CUSTOMER / END USERS OF THE KEY SYSTEM CANNOT MOVE THEIR KEY SYSTEM PHONE TO ANOTHER STREET ADDRESS DIFFERENT FROM THE STREET ADDRESS ASSOCIATED WITH THE REGISTERED ADDRESS FOR SUCH CUSTOMER / END USER.
IT CAN TAKE SEVERAL HOURS TO ACTIVATE 911 SERVICE AT THE UPDATED ADDRESS. WHEN REQUESTED BY TMPROS, CUSTOMER SHALL TIMELY COOPERATE WITH TMPROS FOR THE TESTING OF THE 911 SERVICE FOR THE PURPOSE OF ENSURING THE 911 SERVICE IS PROPERLY W0RKING. IF CUSTOMER REFUSES OR DELAYS TO COOPERATE WITH TMPROS FOR SUCH 911 TESTING, TMPROS GIVES NO ASSURANCE THAT THE 911 SERVICE IS WORKING OR HAS EVER WORKED, AND CUSTOMER SHALL ASSUME FULL AND SOLE LIABILITY IN THE EVENT THE 911 SERVICE FAILS TO WORK PROPERLY. 911 SERVICE WILL NOT FUNCTION IN THE EVENT OF A CUSTOMER PREMISE OR CARRIER SERVICE OUTAGE OR A POWER OUTAGE. NETWORK CONGESTION OR SIGNIFICANT DEGRADATION OF CUSTOMER’S INTERNET ACCESS OR OTHER TYPES OF ACCESS SERVICE MAY DELAY OR PREVENT COMPLETION OF A 911 CALL. THESE CONDITIONS MAY OCCUR REGARDLESS OF THE SIZE OF CUSTOMER’S BANDWIDTH OR THE NUMBER OF CIRCUITS INSTALLED, AND REGARDLESS OF WHETHER OR NOT TMPROS IS THE PROVIDER. TMPROS SERVICES (INCLUDING OR NOT LIMITED TO) INTERNET SERVICE AND/OR MANAGED CONNECTIVITY OR LOCAL T1/PRI SERVICE ARE NOT IMMUNE FROM THESE CONDITIONS. TMPROS STRONGLY RECOMMENDS CUSTOMER AT ALL TIMES MAINTAINS AN ALTERNATIVE METHOD FOR PLACING EMERGENCY CALLS.
Based on the local emergency center servicing Customer’s location, such center will operate with either basic 911 or E911 service.
With basic 911 service when a caller from the Customer’s Registered Address dials the digits 9-1-1, the call is sent to the local emergency center serving the Customer’s location. Operators answering the call will not have automatic access to the caller’s call-back telephone number or the Registered Address because the emergency center will not be equipped to receive, capture or retain Customer’s assigned TMPros telephone number and Registered Address. Accordingly, callers must be prepared to provide both call-back and address information. If the call is dropped or disconnected, or if the caller is unable to speak, the emergency operator answering the call will not be able to call the caller back or dispatch help to the caller’s address.
As additional local emergency centers become capable of E911 functionalities, TMPros will automatically upgrade customers from basic 911 to E911 service. TMPros will not notify Customer of the upgrade. With Enhanced 911 service (E911), when a caller from the Customer’s Registered Address dials the digits 9-1-1, the TMPros telephone number and subscriber’s registered address is automatically sent to the local emergency center serving your location. The emergency operators will have access to this information regardless of whether the caller is able to verbally provide such information to the emergency call-taker. Accordingly, with E911 service, the emergency call-taker will have the caller’s call-back telephone number and registered address information just by virtue of the caller placing the call using the digits 9-1-1.
Some Customers will have the ability to directly update their own E911 location via an online portal. Customer is solely responsible for setting the E911 location accurately to the correct physical location of Customer’s equipment (desk phone, softphone, videophone or mobile phone) with TMPros.
In limited circumstances, Customers equipped with basic 911 or E911 may have their calls routed to the national call center.
TMPros’s Service is Internet based and 911 services are different from that of traditional wireline services. Customer acknowledges and agrees to inform all employees, guests, and other third persons who may use the Service of the potential complications arising from basic 911 or E911 dialing and more specifically that basic 911 and E911 services will not function in the case of a service failure for any of the following reasons: (a) the telephone device to which a particular telephone number has been assigned is moved to a location outside the premises where the telephone device was originally installed, the “registered address,”; (b) there is an outage, degradation or other disruption of power at the Customer’s location; (c) there is outage, degradation or other disruption of Customer’s broadband Internet connection, whether such connection is provided by TMPros or another provider; (d) suspension of services due to billing issues; (e) any other service outages not described herein; (f) Customer’s failure to provide a correct physical address in the requisite format may cause all basic 911 or E911 calls to be routed to the incorrect local emergency service provider; (g) the 911 or E911 call is routed to a long distance trunk group instead of a local trunk group; and/or (h) if Customer uses the public Internet for voice calls (or voice call signaling), Customer may not be able to access 911 or E911 services. Under any of the circumstances enumerated in items (a) through (h), above, TMPros will not be liable for any inability to dial 911 using TMPros VoIP services or for the misrouting of any calls made to the PSAP emergency center or to municipal emergency service providers, and Customer further agrees to defend, indemnify and hold harmless TMPros, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to TMPros in connection with TMPros’s VoIP services, from any and all claims, losses (including loss of profits or revenue), damages, fines, penalties, costs and expenses (including, without limitation, attorneys’ fees and expenses) by, or on behalf of, Customer or any third party or user of TMPros’s VoIP services relating to the non-availability of 911 dialing. TMPros’s suppliers will not be liable to Customer for any damages for any reason.
If Customer routes 911 calls to TMPros utilizing anything other than TMPros 911-enabled DIDs as the source, then Customer is subject to surcharges for the call.
For the PSAP to receive the Customer’s correct 911 address information, Customer must route their 911 calls to TMPros using DIDs which are assigned by TMPros or ported to TMPros and set up by TMPros as 911-enabled. If Customer routes 911 calls using TMPros 911-enabled DIDs to another phone company, then i) the PSAP may not receive the proper address, and ii) that other phone company may charge Customer for such call.
2.21. 911 Notice: The following physical notice will be supplied with TMPros-supplied VoIP Equipment:
“Federal Communications Commission 911 Notice
911 SERVICE MAY NOT BE AVAILABLE ON THIS PHONE IF:
the phone is moved to a location outside the premises where it was originally installed;
there is a loss of power to the phone; or
there is a loss of the phone’s broadband connection.
This notice must be placed and remain near the phone(s) used for your TMPros VoIP Service.”
Customer should call TMPros for a replacement notice card if Customer loses the provided notice or requires additional copies.
2.22. Additional Requirements for SIP Trunking 911: For basic 911 or E911 to be accurately routed to the appropriate emergency responder, the Customer must provide the telephone number (“TN”) associated with the SIP trunking service for the registered address, in the ‘userpart’ of the ‘from uri’ contained in the SIP ‘from’ header. The SIP trunk service may not support basic 911 or E911 dialing in the same manner as traditional wireline phone service. Further, 911 or E911 services may not be available for TMPros’s SIP Trunking products, which are not intended as a replacement for local phone service.
2.23. Customer Duty to Inform Regarding 911 and E911 Services: Customer acknowledges and agrees to inform all employees, guests, and other third persons who may use the service that basic 911 and E911 services will not function in the case of a service failure for any of the following reasons: (a) power failures, (b) suspended or terminated broadband service, (c) suspension of services due to billing issues, and/or (d) any other service outages not described herein. Customer further acknowledges that failure to provide a correct physical address in the requisite format may cause all basic 911 or E911 calls to be routed to the incorrect local emergency service provider. Furthermore, Customer recognizes that use of the service from a location other than the location to which the service was ordered, i.e., the “registered address,” may result in basic 911 or E911 calls being routed to the incorrect local emergency service provider.
2.24. Software Based Phone (“Soft Phone”) – E911 Calling Not Available: TMPros may make available to Customer a Soft Phone, which allows Customer to receive phone calls through a software program that runs on Customer’s personal computer (“PC”). Customer will NOT be able to place outgoing calls using the Soft Phone, including calls made to emergency services through 911, E911 or the emergency numbers. In addition, even if Customer purchases TMPros’s separate outbound Soft Phone service, Customer will NOT be able to make calls to emergency services using E911 services. TMPros strongly recommends that Customer has, at all times, access to a standard telephone or a cellular phone to place emergency phone calls whenever TMPros’s outbound Soft Phone service is being used.
2.25. No 0+, Operator Assisted, or x11 Calling: TMPros Services do not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, 900, or calling card calls. TMPros Services may not support 311, 511, and other x11 services in one or more service areas.
2.26. Incompatibility With Other Services: TMPros Services may not be compatible with non-voice communications equipment, including but not limited to: home security systems; TTY; medical monitoring equipment; TiVo; satellite television systems; PBX; Centrex; other private telephone networks; other broadband services; home networking; or computer modems. There may be other services with which TMPros Services are incompatible. TMPros does not warrant that the Services will be compatible with all broadband services. Some providers of broadband service may provide modems that prevent the transmission of communications using TMPros’s Services. TMPROS EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES REGARDING THE COMPATIBILITY OF THE SERVICES WITH ANY PARTICULAR BROADBAND SERVICE. CUSTOMER WAIVES ANY CLAIM AGAINST TMPROS FOR INTERFERENCE WITH OR DISRUPTION OF THESE SERVICES AND EQUIPMENT.
2.27. Bandwidth Requirements: For TMPros’s local SIP services, including Voice Over MPLS for SIP services, the Customer shall be responsible for ordering a sufficient amount of bandwidth to support the desired number of simultaneous calls and permit the applicable audio compression. In the event of insufficient bandwidth, or in the event Customer attempts to place more simultaneous calls over a circuit than what the circuit can support, Customer may experience degraded call quality or unavailable connectivity. TMPros’s services that utilize VoIP can also be affected by insufficient bandwidth or overutilization.
2.28. Porting Numbers: TMPros will require a completed and signed Letter of Authorization (“LOA”) for any numbers or toll free numbers the customer wishes to port. In addition, TMPros will require a recent, applicable copy of Customer’s current phone bill that contains the Customer’s Billing Telephone Numbers (“BTN”) as well as a record of any numbers that need to be ported. Necessary LOA(s) and bill copy(s) must be received by TMPros before TMPros initiates the port request. TMPros shall not be responsible or liable for any claims or damages customer or other service providers’ requests for porting of numbers.
2.29. Requested Start Date: TMPros will use its commercially reasonable efforts to activate Service by the agreed-upon date. However, TMPros cannot guarantee Service activation by a particular date because TMPros relies on other entities, such as suppliers and Customer, to perform certain tasks and provide certain information before TMPros can activate Service. Customer is responsible for canceling any communications services that the Service will replace and for any and all charges related to those services. Customer is advised not to cancel any services until the Customer has received written confirmation that the porting has been successfully completed.
2.30. Number Portability: Not all phone numbers are considered portable and compatible. Once a number has been confirmed as portable the requested port order will be initiated and billed at the rate quoted in the service order. Port orders failing due to incorrect information provided by the Customer incur a $300 per TN fee. Port orders canceled by Customer or Losing Provider after the order has been accepted by the Losing Provider will incur a fee of $500 per TN plus any regulatory fees.
2.31. Bandwidth Measurements: There are many types of bandwidth speed tests, including various public speed test websites. These sites are subject to inaccuracy and variable results, and do not provide scientific or reliable data for troubleshooting by TMPros. TMPros will not accept speed test results from such websites. TMPros and its underlying providers will only utilize Iperf or RFC-2544 testing terminating to on-net facilities and are considered industry standards for speed performance testing. With respect to Ethernet circuits, there is inherent overhead by the nature of the protocol coupled with equipment such as routers, adaptors and connectors, and the industry standard for the usable portion of the bandwidth is approximately 80% – 85% of any given Ethernet bandwidth.
3. Billing And Payment Arrangements:
3.1. Form of Invoice: TMPros shall send invoices for services by either email, or surface mail, and any invoice received by either method shall constitute a valid bill for services.
3.2. Payment: Customer shall pay for all Services ordered from TMPros, pursuant to an TSO at the rates set forth in such TSO or other pricing exhibits, or as amended from time to time. Customer shall timely pay the full amount invoiced (subject to Section 4- Billing Disputes), even if Customer expects a portion of the invoiced amount to be paid or reimbursed in the future by a third party such as, for example, the Universal Service Administrative Company (“USAC”) in the case of certain customer schools and libraries. Customer shall also pay any repair, telephone charges and charges for inspection, installation or repair of wiring performed on Customer’s premises for the additional charges set forth in the Customer Policies. For a monthly recurring charge that begins somewhere in-between the start and end of a billing period, such charge will be pro-rated for that first billing period. Each month, TMPros shall bill Customer in arrears for usage charges, non-recurring and pro-rata monthly charges (if any) as well as in advance for all applicable circuit port, loop and equipment Monthly Recurring Charges (MRC). In the event Customer orders any DS3, Fast Ethernet, Gig Ethernet, OC3, OC12 or other high speed service (excluding DS1 or below speeds), then Customer shall provide together with submission of the Order an initial payment equal to the quoted installation fees and one month’s MRC for all loops and ports ordered. The amount received shall be applied against the initial installation fees charged on the first month’s invoice. The remainder will be credited against customer’s last monthly invoice.
3.3. Rounding: Unless otherwise stated in an TSO, charges for Services shall be rounded up to two digits per call. By way of example, a call whose cost calculated to $1.214 would be rounded to $1.22.
3.4. Prepayment: Unless Customer receives credit approval in writing from TMPros’s credit department and has signed a separate billing agreement, Customer will be invoiced on a prepaid basis.
3.4.1. 30-Day Payment Customers: For Customers who receive written credit approval from TMPros’s credit department for thirty (30) day payment terms, payments for Service shall be due upon Customer’s receipt of the invoice. Undisputed amounts which are not paid in full within thirty (30) days of the invoice date will be past due and subject to an additional charge equal to the lesser of a one and one half percent (1.5%) per month late payment fee or the maximum monthly rate permitted by law on past-due balances. In the event of non-payment of any past due invoice due, or a material breach of this Agreement, including, but not limited to Access Arbitrage or fraudulent use of TMPros services, all outstanding invoices, including any unbilled usage shall become immediately due and payable, and Customer shall be considered in default.
3.5. Liability for Completed Calls: Customer understands that rates to special service numbers and non-US mobile numbers can be significantly higher than landline rates and Customer is wholly responsible for all calls made over their lines. CUSTOMER IS LIABLE FOR ALL COMPLETED CALLS MADE UTILIZING CUSTOMER’S EQUIPMENT, WHETHER AUHORIZED OR UNAUTHORIZED, AND REGARDLESS OF SUITABILITY FOR CUSTOMER’S APPLICATIONS, AND/OR ANY FAILURE OF OTHER NETWORK ELEMENTS OR SERVICES WHICH MAY IMPACT CUSTOMER’S ABILITY TO OPERATE. CUSTOMER REQUESTS TO BLOCK INTERNATIONAL SERVICE ON TMPROS SERVICE ORDERS SHALL NOT RELIEVE CUSTOMER FROM LIABILITY FOR INTERNATIONAL CALLS MADE ON CUSTOMER’S SERVICE. TMPROS SHALL MAKE COMMERCIALLY RETSONABLE EFFORTS TO PROCESS SUCH BLOCKING REQUESTS, SUBJECT TO NETWORK LIMITATIONS AND RESTRICTIONS. CUSTOMER SHALL NOT HOLD TMPROS LIABLE FOR ANY FRAUDULENT CALLS WHICH MAY OCCUR ON CUSTOMER’S SWITCHED, DEDICATED OR CALLING CARD SERVICES, INCLUDING ANY FRAUD RELATED TO UNAUTHORIZED ACCESS OF CUSTOMER’S TELECOMMUNICATIONS EQUIPMENT. ALL INTERNATIONAL AND OFFSHORE CALLS THAT ARE NOT LISTED ON TMPROS’S RATE SHEET FOR THE CUSTOMER ARE BILLED AT FIVE DOLLARS ($5.00) PER MINUTE. All domestic long distance calls that are not listed on TMPros’s rate sheet for the Customer are billed at fifteen cents ($0.15) per minute.
3.6. Account Codes: Account Codes, either Verified or Non-Verified, are not intended to be utilized as a security measure; they are for accounting purposes only. Verified Account Codes are used for the purpose of tracking calls made under that specific Account Code. TMPros does not offer any guarantee that either Verified or Non-Verified Account Code types can or will prevent any fraudulent calls. The Account Codes are issued at the Customer’s request and are the sole responsibility of the Customer. Customer understands and accepts all responsibility for calls made from any location using the Account Codes whether Verified or Non-Verified.
3.7. Credit Information: Customer agrees that TMPros may request credit information from third parties, and Customer authorizes the release of such information as part of this application.
3.8. Forms of Payment: Acceptable forms of payment are: company checks; cashier’s and certified checks; money orders; personal checks (for non-business accounts); PayPal® (PayPal is a registered trademark of PayPal, Inc.), wire transfers and ACH credits; except where other payment form restrictions are specifically noted in a separate TSO or addendum. Checks must be drawn on U.S. banks and written in U. S. dollar values. Checks drawn on foreign banks and third party checks are not accepted. Payment by cash is not acceptable. TMPros may accept, in its sole discretion, payment by credit card. If Customer pays TMPros by credit card, Customer’s continued receipt of Services, after Customer’s payment to TMPros appears on Customer’s credit card statement, shall be construed as Customer’s acknowledgement of the validity of such undisputed charges, and as Customer’s waiver of all rights to reverse such charges. Customer’s sole recourse for disputed charges shall be as outlined in Section 4 (“Billing Disputes”).
3.9. Applicable Rates and Charges: TMPros may modify the applicable rates and charges upon prior notice to Customer as referenced above in Sections 1, 2.1, 2.2, and 3.2. Customer acknowledges that the termination of international long distance wireless calls may be billed at higher rates.
3.10. Service Start Date; Invoicing; and Payment Deadline: For Services providing an access circuit / loop, the Start of Service Date shall be the earliest of i) the Customer’s first use of the Service, ii) five (5) business days after Circuit Ready Date, regardless of whether all Services have been turned up and regardless of Customer readiness, or iii) five (5) business days after the start of a “Customer Delay of Circuit Installation”. “Circuit Ready Date” is the date the Customer’s circuit is active, as notified by the underlying provider. “Customer Delay of Circuit Installation” is defined as an occurrence of Customer directly or indirectly delaying or impeding TMPros’s underlying provider from installing and/or testing Customer’s access circuit / loop. Customer indirectly delays the underlying provider if the Customer site is not ready to accept Services, or if the Customer’s employees, contractors, supplies, vendors, agents, assigns, property owner, property manager, or landlord does not allow, blocks, or delays TMPros’s underlying provider from installing or testing the access circuit / loop. Customer networking issues, whether the result of improper network design, equipment issues, or incorrect information supplied to TMPros by or on behalf of the Customer, shall not relieve the Customer of the obligation to pay for the Service, including circuit charges, beginning on the Start of Service Date. In the event Customer delays or impedes TMPros from expeditiously submitting Customer’s order to TMPros’s underlying carrier, Customer pricing may change, as notified by TMPros. For MPLS Services, including Voice over MPLS, the Customer is required to coordinate with TMPros to install the hub site first, with each remote site to follow. For Services in which there is no access circuit / loop, the Start of Service Date shall be the date when the Service is available for use by the Customer. For AireContact or AireBroadcast Services, the Start of Service date shall be the earlier of i) Customer’s first use of the service or ii) the date Customer is notified that the service is active. Customer’s obligation to pay for Service shall begin on the Start of Service Date. Service invoicing will occur on a monthly basis. For Wireless Data Service or TMPros Firewall Service, the Start of Service Date shall be the date Customer’s service is activated.
3.11. Non-recurring Charges: Non-recurring Charges are due and payable on the Start of Service Date or as otherwise billed by TMPros.
3.12. Monthly Recurring Charges: Monthly Recurring Charges are fixed in amount, not dependent on usage, and billed in advance. If the Start of Service Date is other than on the first day of a monthly billing period or if Service terminates on other than the last day of a monthly billing period, Customer’s first bill shall include pro-ration of the first month’s Service charges, as well as any NRCs not previously paid.
3.13.1. Taxes, Surcharges and Other Service Related Fees: Service rates and charges are exclusive of all taxes, fees, tax-related surcharges and tax-like surcharges (as enumerated below). Customer shall be responsible for, and must pay, all taxes, including, without limitation, sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, consumption and other taxes, fees, duties, charges or surcharges, roaming charges, however designated, and imposed directly on TMPros based on the provision, sale or use of Service. If Customer believes it, or the Services it receives and uses, are exempt from any tax, Customer will provide TMPros with a properly executed exemption certificate in a form acceptable to TMPros that evidences the exemption claimed. Customer shall renew such certification annually and shall provide evidence of such continuing certification upon request by TMPros. In the event Customer fails to renew its tax-exempt certification, or if its tax-exempt certification is repealed, Customer shall be responsible to TMPros for all such taxes from the date Customer’s tax-exempt certification became invalid. Tax exemption will only apply to Taxes incurred after the date TMPros receives the Tax Exempt Document (Customer cannot receive credit for any Taxes already billed). Customer’s obligation to pay applicable taxes (and all other charges due and owing for Service) shall survive the expiration of the Agreement. Many surcharges, including but not limited to the Federal Universal Service Fund Surcharge, are not a tax and are not subject to exemption. TMPros’s primary surcharges are listed at http://www.TMPros.com/service-terms/64-surcharges.html.
3.13.2. Cost Recovery: TMPros may impose recovery fees in order to recover costs associated with regulatory compliance, administrative and network facilities costs.
3.13.3. Set-up, Installation and Disconnect Fees: Customer shall pay all applicable inspection, repair, set-up, Demarc extension, installation and disconnect fees, service upgrade or relocation fees, which will be invoiced on a Non-Recurring Charge basis and are non-refundable. Quoted installation fees contemplate installations in normal locations under normal working conditions during regular business hours. Any installations under other circumstances including, but not limited to, hazardous locations or made on an expedited basis outside of standard installation intervals will be subject to additional charges.
3.13.4. Charges Imposed By Other Suppliers: If an entity other than TMPros (e.g., another carrier or supplier) imposes charges on TMPros in connection with the provisioning of Service to Customer, including but not limited to, for expedited installations, such charges will be invoiced by TMPros on a pass-through basis and paid by Customer.
3.13.5. Internet/Data Usage (for Measured Broadband Services): Usage is determined as follows: Utilization samples are taken every 5 minutes throughout Customer’s billing cycle. Only the highest sample is captured for each five-minute period, even though there are actually two samples taken; one for inbound utilization and one for outbound utilization. The higher of these two figures is retained. At the end of the billing period, the samples are ordered from highest to lowest. The result is a database of over 8,000 samples (12 Samples/hour x 24 hours/day x 30 days/month), with the highest sample listed first and the lowest sample listed last. The top five-percent (5%) of the samples (representing the top five-percent (5%) of usage levels) are discarded. The Highest remaining sample, the 95th percentile of peak usage, is the bandwidth usage for an individual port.
3.14. Underutilization: Customer understands and acknowledges that TMPros’s underlying carriers may terminate service on any circuit for underutilization. Customer understands that such termination would in no way affect Customer’s commitment to pay for all monthly circuit charges associated with these circuit(s) for the entire term of the contract. TMPros will provide Customer fifteen (15) days written notice of its underlying carrier’s intent to disconnect, and Customer shall have the option of increasing usage to prevent disconnection of circuit(s), or alternatively accepting disconnection of designated circuit(s). In the event of disconnection, Customer shall reimburse TMPros for any circuit disconnection fees charged by the underlying carrier to TMPros.
3.15. Excessive Incomplete Calls: If Customer utilizes the TMPros underlying network for call termination, Customer may not have an excessive percentage of outbound incomplete calls, as calculated on the basis of total outbound call attempts in a month per unique customer account. Also, it will be considered outside of TMPros’s Fair Use Policy if the Customer has an excessive percentage of inbound call attempts. An Excessive Call Attempt Surcharge of $0.005 per call will be assessed for all incomplete calls, whether outbound or inbound, deemed excessive by TMPros in its sole and absolute discretion. For customers utilizing the TMPros network whose total number of DS1 circuits ordered is 4 (Four) or less (including all circuits utilizing the TMPros network ordered previously or separately by Customer), the Excessive Call Attempt Surcharge shall not apply until such time as Customer’s total number of DS1 circuits utilizing the TMPros network exceeds 4. For customers utilizing Toll Free services, Customer may not have an excessive percentage of inbound or outbound Toll Free incomplete calls, as calculated on the basis of total Toll Free call attempts by end user customers in a month per unique customer account. An Excessive Call Attempt Surcharge of up to $0.04 per call will be assessed for all Toll Free incomplete calls deemed excessive by TMPros in its sole and absolute discretion.
3.16. Termination: If service is terminated for any reason, Customer will pay TMPros for (a) Services that Customer has used through the date that TMPros or Customer terminates the Services, (b) any outstanding balance for non-recurring charges, and (c) all charges that may still be due or may be incurred for early termination (see section 3.17. Early Termination Liability).
3.17. Early Termination Liability: Except as may be mutually agreed upon in writing, such in an the TSO, in the event Customer terminates the Service or the Agreement or any TSO is after submission of an order for a loop/circuit to the underlying carrier but before the end of the applicable term, Customer shall pay to TMPros on demand, as liquidated damages and not as a penalty, an Early Termination Liability charge (“ETL”) equal to the sum of i) one hundred percent (100%) of the Monthly Recurring Charges (“MRCs”) for loop/circuit charges for all of the months remaining in any applicable term, ii) one hundred percent (100%) of MRCs for all other charges for the remaining months in the initial twelve months of the term, iii) eighty percent (80%) of the MRCs for all other charges for the remaining months in months 13 – 24 of the term, and iv) seventy percent (70%) of the remaining MRCs for all other charges for the remaining months in the term, namely month 25 and after. In the event of Customer’s termination of the Agreement before the expiration of its term, TMPros’s actual damages would be impracticable and/or extremely difficult to ascertain, so the parties agree the ETL set forth above is a reasonable estimate of actual damages. With respect to Customer terminating the Agreement after the submission of paperwork to the underlying carrier but prior to the Start of Service Date, the number of months remaining in the term shall be the total number of months for which the Customer has contracted. Assessment of an ETL does not relieve Customer of Customer’s obligation to pay any non-recurring charges or any undisputed past due charges and interest thereon.
3.18. Recovery of Collection Costs: Unless otherwise prohibited by law, Customer shall reimburse TMPros for any costs incurred by TMPros in undertaking any collection activity, including, but not limited to, the reimbursement of reasonable attorneys’ fees. Reasonable attorney’s fees shall include the time and costs associated with TMPros’s in-house legal staff efforts related to the collection activity. For purposes of calculating the time and costs, the Parties stipulate that TMPros’s in-house legal staff’s time shall be billed at $200.00 per hour.
3.19. Right of Offset: If Customer defaults on any payment obligation owed TMPros under any agreement for more than thirty (30) days and TMPros has funds that are owed the defaulting Customer, TMPros may offset that which it is owed by first applying such funds to the full balance due by the defaulting Customer. Any amount remaining following the offset shall be remitted to Customer in the normal course of business.
3.20. Call Rating: For Customers that purchase a Local voice service, “Local” calls are separate from “Local Toll” calls. A local call is a telephone call that both originates and terminates within the Customer’s exchange. A Local Toll call is a telephone call that terminates within a geographic area known as a Local Access and Transport Area (“LATA”) in which the Customer is located, but outside of the Customer’s exchange. Per minute toll charges usually apply to a Local Toll call. Calls will be rated as local calls if they are terminated within subscriber’s Local Calling Area associated with the call’s originating ANI (which must be an TMPros assigned DID). All calls outside of a subscriber’s Local Calling area shall be rated as either intrastate, interstate, or international long distance.
For Customers that purchase Long Distance (“LD”) service, calls will not be rated as local calls, and as such no call will be billed at no charge. There are only five categories of LD calls: intrastate, interstate, offshore, international and indeterminate. Intrastate calls originate and terminate in the same US state within the contiguous 48 states. Interstate calls originate and terminate in different US States within the 48 contiguous US states. Offshore calls terminate or originate to the United States territories, Alaska or Hawaii, with the alternate leg originating or terminating within the contiguous 48 states. International calls originate from and/or terminate into a country other than the United States and its territories. All of the above defined categories shall only be applicable if a valid NADP telephone number appears in the Originating Automatic Number Identification (ANI) and Terminating ANI provided in the call signaling with respect to any US number. All other originated telephone numbers are deemed indeterminate calls. Indeterminate calls are billed at the higher of the intrastate or interstate rates.
For purposes of determining call jurisdiction, TMPros uses the Originating Automatic Number Identification (ANI) and Terminating ANI provided in the call signaling. TMPros utilizes the value in the ‘FROM’ field in the SIP header as the Originating ANI for establishing the jurisdiction of the call (i.e. interstate versus intrastate versus international). However, in the event a value is present in any of the SIP header fields used for caller id (e.g. Remote Party ID, P-Assert-Identity) TMPros may use this in lieu of the “FROM” field as the Originating ANI to determine the jurisdiction of a call. If TMPros cannot accurately rate a call due to an invalid or omitted Originating ANI, and its rating jurisdiction is not international, TMPros will default to rating the call at the prevailing Intrastate long distance rate. TMPros will determine the originating or terminating carrier by evaluating the terminating ANI down to the NPA-NXX-X level. Customer is required to maintain the originating ANI for all outbound calls and abstain from any level of ANI manipulation in the call signaling.
3.21. Local Call Rating Exclusion: Rating outbound calls as Local only applies to calls that utilize telephone numbers (DIDs) assigned by TMPros or that have been ported to TMPros’s service as the originating ANI. Termination of calls from DIDs not provided by TMPros or ported to TMPros’s service will be rated as either Interstate or Intrastate long distance. This distinction of inter versus intrastate long distance will be determined based on the Originating Automatic Number Identification (ANI) and Terminating ANI provided in the call signaling. If TMPros cannot accurately rate a call due to an invalid or omitted Originating ANI, and its rating jurisdiction is not international, TMPros will default to rating the call at the prevailing Intrastate long distance rate.
3.22. Toll Free Pricing: For the Customer to obtain the pricing of toll free calls set forth on the Service Order i) all associated DIDs to the toll free numbers must be ported to TMPros or ii) TMPros must assign the associated DIDs, otherwise a higher switched rate will apply for toll free minutes.
3.23. No Rollover: All bundles/buckets of minutes and/or bundles of text are invoiced on a monthly basis. Unused minutes or texts do not rollover into subsequent months.
4. Billing Disputes:
4.1. Customer Obligation: Any invoices issued to Customer shall be deemed correct and binding on Customer unless Customer files a dispute according to the provisions of this Section 4.
4.2. Requirements for Valid Dispute: An invoiced charge will be deemed disputed by Customer if, and only if: (a) Customer believes in good faith that the charge was invoiced in error; (b) Customer provides TMPros written notice of the disputed charge no later than thirty (30) days from the date of the invoice on which the charge first appeared; and (c) Customer’s notice of the disputed charge includes the amount of the disputed charge, the reason the charge is disputed, and documentation supporting the dispute, and provide all documents supporting each dispute. Customer shall not have the right to withhold any amount not properly disputed. If Customer does not dispute a charge(s) on the invoice within thirty (30) days from the date of the invoice, then the invoice will be deemed to be correct.
4.3. Resolution of Disputed Charges: TMPros shall have the right to determine in good faith the merit of each dispute and Customer’s associated payment obligation. TMPros will investigate all billing disputes and notify Customer in writing that: (a) a credit will be issued to reverse any amount that TMPros determines was incorrectly billed, or (b) TMPros has determined that the disputed charge was invoiced correctly. After a billing dispute is resolved, if the dispute is resolved in TMPros’s favor, Customer will, within five (5) business days of such resolution, remit to TMPros any required payment, plus interest at the lower of one and one-half percent (1.5%) per month or the maximum rate permissible under applicable state law, calculated from the due date until the date payment is received by TMPros. Failure to pay such amount in full within such five (5) day period shall be a breach hereof and shall entitle TMPros, in addition to its other remedies at law or equity, to terminate all Services to Customer without notice and without liability of any kind or amount. If the dispute is resolved in Customer’s favor, and Customer withheld payment of the disputed amount, then TMPros will issue a credit to reverse the amount incorrectly billed. If the dispute is resolved in Customer’s favor and Customer previously paid the disputed amount, then TMPros will issue a credit to reverse the amount incorrectly billed and apply such credit against Customer’s next invoice(s). If Customer is no longer being invoiced by TMPros, TMPros will remit to Customer the amount of the credit within ninety (90) days of the date of such credit.
5. Services and Equipment:
5.1. Products and Customer Equipment Supplied by TMPros: TMPros may deliver to Customer certain software, hardware and documentation, including but not limited to TMPros-provided equipment (collectively, “Products”). TMPros grants to Customer a personal, limited, non-transferable, non-exclusive, license, without the right to sublicense, transfer, copy or create derivative works, to use the Products during the term of the appropriate TSO solely for use with the Service specified in such TSO and in accordance with the Agreement. Either TMPros or other third-parties own and will continue to own the software used to provide Services. Customer may not decompile, reverse engineer or otherwise use any software code from any software provided by TMPros or its suppliers. Some software necessary to fully utilize the full functionality of the Services may require Customer to accept additional terms and conditions required by the third-party providers of such software. If Customer has purchased or leased Equipment from TMPros or its certified third party leasing company then the Customer must install Equipment in accordance with instructions provided by TMPros (or its third party vendor). Customer may not change the settings on any equipment supplied by TMPros or its agents without TMPros’s express written consent. In addition TMPros-provided equipment must be used solely for the purpose of Service utilization. TMPros will use commercially reasonable efforts to supply and configure the Products to allow Customer to use the Services, unless Customer is supplying its own equipment or purchasing it from a third party (including an TMPros authorized dealer or fulfillment partner). TMPros is not responsible for the configuration of, or the components of, Customer’s personal computer or for other telephony equipment that may be necessary to make such customer-provided equipment compatible with the Service. For any equipment that Customer purchases directly through TMPros, TMPros may supply new or recertified equipment. On new and recertified equipment purchased by Customer through TMPros, Customer understands that any Product it purchases through TMPros, a dealer or fulfillment partner is only designed to work with TMPros’s Services. If Customer or TMPros terminates Services for ANY RETSON, Customer will NOT be eligible for a refund, either full or partial, for any fees paid by Customer for a Product, or for third party-supplied equipment.
5.2. Return of TMPros-Provided Equipment. Customer agrees to return all equipment provided by TMPros or its underlying carriers (“TMPros Provided Equipment”) within thirty (30) days of i) the termination of Services for any reason or ii) upon receiving replacement TMPros-Provided Equipment for a non-functioning unit or as part of a Service upgrade. Customers may receive a prepaid shipping label by emailing the request to [email protected] Please include your company name, address and telephone number in the request. If Customer fails to return all of the TMPros-Provided Equipment within the thirty (30) day period, TMPros shall invoice Customer for the current replacement cost of any TMPros-Provided Equipment not returned, plus taxes. The TMPros-Provided Equipment must be returned in the same condition as received, normal wear and tear excepted.
5.3. Maintenance, Support, and Repair for Products Provided by TMPros: All equipment provided to Customer by TMPros is subject to the terms and conditions set forth in the manufacturer’s or publisher’s warranty, end-user license, or agreement applicable to such Products, with no additional warranty of any kind from TMPros. If Customer purchases equipment from TMPros, an authorized dealer or fulfillment partner, Customer must address any issues or warranty concerns relating to that equipment with the manufacturer of such equipment or the authorized dealer or fulfillment partner. TMPros will not repair, replace or warranty such purchased equipment. Customer shall reimburse TMPros for the Field Service Technician visit, if applicable, at then-applicable rates and for the cost of any replacement equipment for the entire cost to repair and/or replace any Product in the event that Product requires replacement due to (a) misuse or abuse, (b) failure to exercise reasonable care, (c) altering original TMPros configuration, (d) damage, (e) theft, or (f) disaster. If a replacement Product is requested for an TMPros-supplied non-purchased Product, TMPros will ship preconfigured replacements to Customer. Customer shall return any non-purchased faulty Product to TMPros within thirty (30) days of receiving the replacement Product or pay for such Product. Customer will not receive compensation for downtime associated with Product failure, replacement or repair. TMPros’s liability is strictly limited to the pro-rata reduction of TMPros’s monthly recurring charges. At TMPros’s discretion, any Product, either originally, or as a replacement, may be new, recertified or refurbished. Any Product supplied by TMPros as a replacement Product will carry the remainder of any manufacturer warranty. TMPros may also provide any Product upgrades at no expense to Customer, and Customer shall use all such upgrades provided by TMPros. TMPros shall not replace, and Customer shall be responsible for the full cost of replacement of TMPros-Provided Equipment and phones in the event of damage: (a) to consumable parts, such as batteries, or protective coatings designed to diminish over time unless failure has occurred due to a defect in materials or workmanship; (b) to cosmetic damage, including but not limited to scratches, dents, and broken plastic on ports; (c) to damage caused by use with other products; (d) to damage caused by accident, abuse, misuse, liquid contact, fire, earthquake or other external causes; (e) to damage caused by operating the product outside the permitted or intended uses described by TMPros; (f) to damage caused by service (including upgrades and expansions) performed by anyone who is not a representative of TMPros; (g) to a product or part that has been modified to alter functionality or capability without the written permission of TMPros; (h) to defects caused by excessive wear and tear or otherwise due to the excessive aging of the product or (i) if any serial number has been removed or defaced. TMPros and its suppliers shall have no obligation or liability in connection with any equipment not purchased through TMPros even if configured by TMPros, or for any abuse, misuse or reconfiguration, including, but not limited to, the addition of software or other devices, of any equipment by any party other than TMPros.
5.4. Customer-Provided Equipment (“CPE”): Customer may not use equipment that TMPros has not certified for use with the TMPros Services. Customer is solely responsible for ensuring that CPE complies with the compatibility guidelines published by TMPros. If Customer or a third party changes the settings with respect to equipment at Customer’s location that TMPros uses to provide Service (including, but not limited to, the addition of software or other devices on the LAN), then Customer assumes the risk that the Service may not work. Customer is solely responsible for ensuring the proper functioning of Customer-provided CPE. TMPros will not provide any assistance in the setup or configuration of Customer provided CPE at the time of installation. Customer is solely responsible for the management of Customer-provided CPE. TMPros’s Customer Support Center will not provide any assistance with the configuration or maintenance of Customer-provided CPE. If TMPros dispatches a Field Service Technician in response to a trouble ticket ultimately determined by TMPros to be the result of the Customer-provided CPE, TMPros will charge Customer for the Field Service Technician dispatch. The Customer will not receive service credits if TMPros determines that Customer-provided CPE contributed to the event for which Customer is requesting a credit. IN ADDITION TO THE WARRANTY DISCLAIMERS ELSEWHERE IN THIS AGREEMENT, TMPROS EXPLICITLY DISCLAIMS ANY AND ALL WARRANTY OR MAINTENANCE RESPONSIBILITY FOR CUSTOMER-PROVIDED CPE. ANY WARRANTY CLAIMS, MAINTENANCE, OR REPAIRS FOR CUSTOMER-PROVIDED CPE WILL BE THE SOLE RESPONSIBILITY OF CUSTOMER. Customer will not receive Service Level Agreement credits if TMPros determines that Customer-provided CPE contributed to the event for which Customer is requesting.
5.5. Customer Cooperation: Provisioning and maintaining Service will require Customer’s cooperation, including allowing TMPros or its third-party contractors, reasonable and safe access to Customer’s premises to activate and support the Service.
5.6. TMPros Local SIP Trunk Services: TMPros SIP Trunks is a bundled virtual trunking service providing inbound, outbound local and long distance voice services via an TMPros assigned direct inward dial telephone number (“DID”). The service will route between a Customer’s Internet Protocol (“IP”) address and either the public switched telephone network (“PSTN”) or another IP address with TMPros delivering traffic to the Customer’s gateway device or IP-private branch exchange (“IP-PBX”) via an Internet protocol connection using Session Initiation Protocol (“SIP”) signaling. Each SIP Trunk enables a single concurrent call but can be oversubscribed with multiple assigned DIDs being accessible via a single trunk. SIP Trunks may also include static 911 services, 411, Operator services, inbound caller id, caller location or white page listing, which require Customer to provide their own legitimate service address. Only telephone numbers (“TNs”) or Toll-Free TNs provided by TMPros or ported to the TMPros network can be used in conjunction with this service.
5.7. TMPros Local SIP Trunk Services Limitations: TMPros SIP Trunk service does not include any Class 5 features (e.g. call waiting, call forwarding, voicemail, etc.), nor will the service provide any of the following call types: 976, 900, or 1010xxx. (Outbound local, 911, outbound 800 calls or 411 calls are only available if the call’s originating Automated Number Identification (“ANI”) is a TMPros assigned DID or a DID that has been ported to the TMPros network). The Service does not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, 900, or calling card calls. The Service may not support 311, 511, and other x11 services in one or more service areas. All special configurations are subject to TMPros’s approval and TMPros reserves the right to terminate this agreement where proper interoperability testing has not been completed when required. Any traffic deemed to jeopardize the integrity of TMPros’s network may be blocked by TMPros. TMPros SIP Trunk Service may not be compatible with all non-voice communications equipment, including but not limited to home security systems, TTY, medical monitoring equipment, certain versions of TiVO, satellite television systems, PBX, Centrex, other private telephone networks, or computer modems. The Customer waives any claim against TMPros for interference with or disruption of these services and equipment, as well as any claim that TMPros is responsible for any disruption to Customer’s business, if applicable. If Customer uses public broadband or Internet access, TMPros SIP Trunk Service presently is not compatible with all broadband services. Some providers of broadband service may provide modems that prevent the transmission of communications using the TMPros SIP Trunk Service. TMPros does not warrant that SIP Trunk Service will be compatible with all broadband services and expressly disclaims any express or implied warranties regarding the compatibility of TMPros SIP Trunk Service with any particular broadband service.
5.8. Hosted Music on Hold Services: Customer may also be purchasing TMPros’s music hosting services (the “Music Hosting Services”), which may be purchased separately. Customer grants to TMPros and its suppliers a non-exclusive, worldwide, and royalty-free license for the term of this Agreement to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use Customer’s content as necessary for the purposes of rendering and operating the Music Hosting Services under this Agreement. If Customer provides TMPros with material that Customer wishes TMPros to host (e.g., custom music for Customer’s music on hold) (the “Custom Materials”), Customer represents and warrants that Customer has obtained and will maintain all necessary and appropriate rights, approvals and/or licenses for use of the Custom Materials. Customer agrees to indemnify and hold TMPros, its officers, directors, employees, affiliates, suppliers and shareholders harmless for all third-party claims arising out of use of the Custom Materials. Customer expressly: (a) grants to TMPros and its suppliers a license to cache materials distributed or made available for distribution via the Music Hosting Services, including content supplied by third parties, and (b) agrees that this caching is not an infringement of any of Customer’s intellectual property rights or any third party’s intellectual property rights. Customer shall indemnify and hold harmless TMPros (including its attorneys’ fees and expenses) in connection with any claim or violation of any intellectual property rights in related to materials distributed or made available for distribution via the Music Hosting Services.
5.8. TMPros Security Services:
5.8.1 Description of TMPros Firewall Service: The TMPros Firewall Service helps protect Customer’s network with a layer of network security, including support for intrusion prevention (such as alerting Customer as to malicious and unknown events via a web portal), malware (anti-virus and anti-spyware) prevention, content and URL filtering, and application intelligence and control. TMPros offers the TMPros Firewall Service during the term of this Agreement and subject to the terms and conditions herein as i) a firewall located within the Customer’s premises and fully managed by TMPros , ii) a cloud-based firewall, fully managed by TMPros, or iii) a firewall located at the Customer premises and managed / maintained by the Customer. WiFi capability may be available for firewalls at the Customer premises. High Availability (“HA”) configurations of firewalls may also be available. For HA, multiple firewalls are configured and synchronized, providing redundancy and avoiding a single point of failure where customer can bring their own hardware. For TMPros fully-managed firewalls, as opposed to firewalls Customer elects to manage, i) event data is available via an online reporting system for early threat identification and ii) the firewall service includes 24×7 technical support. The TMPros Firewall Service consists of both firewall hardware or software or both. The TMPros Firewall Service may be used in conjunction with other separate TMPros services, including but not limited to MPLS and Dedicated Internet Access (“DIA”) services. To receive the TMPros Firewall Service, Customer must submit an TMPros Firewall Service Order to TMPros specifying the desired firewall service(s), and TMPros must approve Customer’s Service Order request.
5.8.2 License for Use. Subject to the terms and conditions in this Agreement, Customer shall have a limited, non-exclusive, non-transferable, non-sublicensable license to use the software supplied to Customer in support of the TMPros Firewall Service (the “Licensed Software”). Customer shall not use the Licensed Software for any other purpose. Customer shall only use the Licensed Software on the equipment provided to Customer in support of the TMPros Firewall Service . The Licensed Software is only being licensed to Customer, not sold. This license shall automatically expire upon the expiration of the Initial Term for the TMPros Firewall Service , or any subsequent renewal terms. Customer may not reverse engineer, decompile, disassemble, or attempt to discover or modify in any way the underlying Licensed Software source or object code. Customer shall not modify, translate, localize, adapt, rent, lease, loan, sell, create derivative works from the Licensed Software, or create a patent using any part of the Licensed Software. Customer may not reload the Licensed Software from the equipment furnished in support of TMPros Firewall Service to any other equipment without TMPros’s prior written consent. Customer shall not engage in any act that will or is likely to result in misappropriation of infringement of TMPros’s or any third party’s intellectual property rights in the equipment, Licensed Software, or documentation. Customer shall not use the Licensed Software or documentation to create, market, lease or sell a product or service in competition with the TMPros Firewall Service . Each permitted copy of the Licensed Software and documentation made by the Customer must contain all titles, trademarks, copyrights and restricted rights notices as in the original. Notwithstanding anything to the contrary, nothing herein shall restrict Customer from exercising additional or different rights to any open source software that may be contained in or provided with the TMPros Firewall Service , in accordance with the applicable open source license(s). Customer shall be liable for its acts and omissions in connection with its misuse of the TMPros Firewall Service and shall defend TMPros against any action, claim or suit brought against TMPros in connection with or related to Customer’s misuse of the TMPros Firewall Service and shall pay any final judgments or settlements as well as TMPros’s expenses in connection therewith.
5.8.3 Proprietary Rights. The TMPros Firewall Service is protected by copyright, trademark(s), trade secrets, and/or patents of TMPros or third parties. This Agreement does not grant Customer permission to use trademarks or service marks or the intellectual property associated with or contained in the TMPros Firewall Service in any way other than as set forth in this Agreement. TMPros reserves any and all rights, implied or otherwise, that are not expressly granted to Customer in this Agreement. Customer shall own all right, title, and interest to any data provided by Customer to TMPros or its affiliates or independent contractors in connection with the provisioning, support or maintenance of the TMPros Firewall Service (“Customer Data”). During the term of the TMPros Firewall Service, Customer grants to TMPros and its affiliates a limited, non-exclusive license to use the Customer Data solely for the purpose of provisioning or maintaining the TMPros Firewall Service . Customer is solely responsible for backing up or archiving Customer Data, and TMPros assumes no responsibility for doing so or for the loss or corruption of any Customer Data.
5.8.4 Equipment: Except for equipment or hardware purchased by the Customer pursuant to an TMPros Service Order, or where customer provides their own compatible approved hardware, TMPros shall provide hardware as necessary in support of the TMPros Firewall Service. For a cloud-based firewall, no firewall is shipped to the Customer. The equipment used in connection with the TMPros Firewall Service is leased, not sold, to Customer. In the event Customer returns equipment for any reason, including returning equipment at the end of the term of the TMPros Firewall Service or returning the equipment for repair or replacement, Customer shall delete all Customer Data from the equipment prior to its return. TMPros and its affiliates and third parties shall have no liability for any Customer Data left on equipment. Replacement equipment may be refurbished equipment, but shall function equivalently or better than the returned equipment. At the end of the term of the TMPros Firewall Service , Customer shall ship back the equipment to TMPros or its designated affiliate or independent contractor in the same condition as received, save for ordinary wear and tear. Shipping costs for such return shall be borne by Customer. Customer shall be solely liable for the full cost of any lost or unreturned equipment. New firewall devices shall be deployed and configured remotely by the TMPros team with a standard deployment configuration and on-site support from the customer. Service does not include wireless configuration on Customer devices (e.g. including but not limited to laptops, mobile devices, routers, hot spots, etc.).
5.8.5. Work at Customer Premises: If and to the extent that the implementation, performance or delivery of the TMPros Firewall Service requires TMPros personnel or third parties to be physically present at Customer’s premises, and upon receiving travel approval from Customer, then Customer shall reimburse TMPros for all reasonable and out-of-pocket expenses, including but not limited to, hotel, airfare, and meals, incurred in connection with the implementation, performance or delivery of the TMPros Firewall Service.
5.8.6. Termination: Upon termination of the TMPros Firewall Service , i) the license for the Licensed Software shall automatically expire, ii) Customer shall immediately stop using the TMPros Firewall Service and associated documentation; iii) Customer shall remove all copies of the Licensed Software from all Customer-owned computers or other devices where the Licensed Software was installed on behalf of Customer; iv) Customer shall return all Licensed Software and documentation to TMPros (or TMPros’s designated affiliate or independent contractor) or shall destroy the items; v) shall pay TMPros all outstanding amounts due and payable; and vi) shall promptly ship the equipment back to TMPros (or its designated affiliate or independent contractor), with shipping costs to be borne by Customer. Upon request from TMPros, Customer shall confirm in writing that it has complied with the above steps within ten (10) days of receipt of such request. If Customer terminates the TMPros Firewall Service before the end of the then-current term, Customer shall pay to TMPros on demand, as liquidated damages and not as a penalty, an Early Termination Liability charge (“ETL”) equal to the sum of the Monthly Recurring Charges (“MRCs”) for all of the months remaining in any applicable term,
5.8.7 Warranty Disclaimer/ Limitation of Liability: In addition to other warranty disclaimers or limitations of liability set forth in this Agreement, TMPROS DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE SOFTWARE OR HARDWARE. THE TMPROS FIREWALL SERVICE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED FOR USE IN A HIGH-RISK OR HAZARDOUS ENVIRONMENT SUCH AS THE OPERATION OF NUCLEAR FACILITIES, AIRECRAFT NAVIGATION, AIR TRAFFIC CONTROL, LIFE SUPPORT MACHINES, WEAPONS SYSTEMS, OR ANY OTHER APPLICATION WHERE THE FAILURE OR MALFUNTION OF THE SOFTWARE OR HARDWARE CAN RETSONABLY BE EXPECTED TO RESULT IN DEATH, PERSONAL INJURY, SEVERE PROPERTY DAMAGE, OR SEVERE ENVIRONMENTAL HARM (IN AGGREGATE, “HIGH RISK ENVIRONMENT”). ANY USE OF THE TMPROS FIREWALL SERVICE IN A HIGH RISK ENVIROMENT IS AT CUSTOMER’S SOLE RISK OF LIABILITY, AND TMPROS AND ITS AFFILIATES OR INDEPENDENT CONTRACTORS SHALL HAVE NO LIABILITY RELATED TO OR ARISING FROM CUSTOMER’S USE OF THE TMPROS FIREWALL SERVICE IN A HIGH RISK ENVIRMONMENT. TMPROS DOES NOT WARRANT THE ABILITY OF AN TMPROS FIREWALL TO SUCCESSFULLY INTERWORK WITH THIRD PARTY FIREWALLS MANAGED BY OTHER PARTIES. DEPLOYMENT OF THE TMPROS FIREWALL SERVICE DOES NOT ACHIEVE THE IMPOSSIBLE GOAL OF RISK ELIMINATION, AND THEREFORE TMPROS DOES NOT GUARANTEE THAT INTRUSIONS, COMPROMISES, OR OTHER UNAUTHORIZED ACTIVITY WILL NOT OCCUR ON CUSTOMER’S NETWORK.
5.8.8 Export Restrictions: The TMPros Firewall Service includes hardware, software, technology and/or encryption that are subject to United States export restrictions, including the Treasury Department, Office of Foreign Asset Controls (“OFAC”), the State Department’s International Traffic in Arms Regulations (“ITAR”), and the Commerce Department’s Export Administration Regulations (“EAR”). Both parties agree to comply with all such applicable laws and regulations. Customer shall not transfer or relocate or use the TMPros Firewall Service in any manner in violation of the above laws and regulations or any other applicable laws or regulations. The TMPros Firewall Service shall not be moved to any country in which the United States has a trade embargo. Customer shall not deal with any individual, entity or company listed on OFAC’s Specially Designated Nationals list. Customer shall be liable to pay any judgments or settlements reached where such dispute arises from i) Customer’s failure to provide TMPros or its affiliates or independent contractors (in aggregate, the “Support Team”) with accurate information needed to obtain an export license, or ii) any allegation made against the Support Team due to Customer’s violation or alleged violation of export laws.
5.8.9 Customer Cooperation: Customer shall reasonably and timely cooperate with the Support Team in the installation, provisioning, maintenance and support of the TMPros Firewall Service Customer shall provide, as appropriate, access to its personnel, facilities, equipment, network, information and hardware in connection with the delivery, installation and support of the TMPros Firewall Service. Customer shall promptly obtain and provide to TMPros any required licenses, permits or approvals requested by the Support Team in order to perform, deliver, or implement the TMPros Firewall Service. Customer is responsible for ensuring that their hardware/software stays within Airepsring’s supported versions. TMPros shall be excused from its performance requirements should Customer delay, fail to cooperate, or fail to perform its responsibilities under this Agreement. In order to provide device availability monitoring, the Support Team must be able to connect to the equipment via the Internet using HTTPS and IPSEC protocols. To the extent Customer is able, Customer shall ensure that the Support Team has such access. Customer shall reasonably cooperate with the Support Team in support of investigations concerning environmental outages and security issues such as those set forth in Section 5,12.10 below. Customer must provide the Support Team with exclusive administrative privileges on the specific devices to be managed.
5.8.10 Troubleshooting: . In the case of a Customer-related failure, such as a Customer network outage or the failure of a Customer-managed device, the Support Team shall provide Customer with troubleshooting information upon Customer’s request, but the Support Team is not responsible for troubleshooting issues that are not directly related to the TMPros Firewall Service. TMPros does not offer application debugging in the event of unexpected consequences from application control settings. TMPros’s responsibilities regarding application control are limited to enabling or disabling the application control settings. By default, at the time of the initial deployment of the firewall, application intelligence and control is turned off. It is Customer’s responsibility to configure its LAN infrastructure connecting to the firewall. TMPros is not responsible for and shall not troubleshoot customer LAN issues. TMPros shall not perform wireless LAN availability monitoring and cannot assist with individual wireless client connectivity issues. TMPros is not responsible for advising Customer about network priority changes. Certain support is out of scope of the TMPros Firewall Service, including integration of complementary products that are not managed by TMPros (e.g. encrypted email, web reporting software), customer analysis / custom reports, forensics, configuration of any tunnel end point that is not terminated on an TMPros-managed device, rule set design / validation / troubleshooting, firewall policy auditing, and development of customized signatures.
5.8.11 Customer Conduct: It shall be a breach of this Agreement if Customer i) attempts to use or gain unauthorized access to TMPros’s or any third party networks, ii) permits unauthorized individuals or entities to copy the Licensed Software; iii) provides unauthorized access to the Licensed Software; iv) attempts to probe, scan or test the vulnerability of the Licensed Software, TMPros’s network, or the networks of Airepsirng’s suppliers, affiliates, independent contractors or other customers; v) interferes or attempts to interfere with service to any other hosts or networks; vi) engages in fraudulent, offensive or illegal activity that infringes on the intellectual property rights of any individual or third party, vii) intentionally distributes worms, Trojan horses, viruses, corrupted files, or any similar items; or viii) violates any provision in TMPros’s Acceptable Use Policy (“AUP”) located on the TMPros web site at https://www.tmpros.com/service-terms/acceptable-use-policy-aup/. Should Customer or its users be responsible for a breach pursuant to this Section, Customer shall pay TMPros for any judgments or settlements reached in connection with a third party claim, as well as TMPros’s costs of responding to such third party claim.
5.9. TMPros Hosted Key System:
5.9.1 No Individual Voicemail Boxes: End users of the TMPros Hosted Key System service may not have individual voicemail boxes. All voicemails received under the Hosted Key System will be shared in one voicemail box.
6.1. Definition: “Confidential Information” shall include TMPros pricing, trade secrets as defined under applicable law (“Trade Secrets”), and any and all information, whether provided in writing, orally, visually, electronically or by other means, whether or not marked as “confidential” or “proprietary,” related to the Services and/or business of TMPros, including, but not limited to, the terms and conditions of the Agreement. Confidential Information shall not include information (a) already lawfully known to or independently developed by Customer as evidenced by its written records, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from third parties without any obligation of confidentiality.
6.2. Confidentiality Obligation: Customer shall maintain the confidentiality of the Confidential Information and shall use the same level of care, but in no event less than a reasonable standard of care, as it uses to maintain the confidentiality of its own confidential information. Customer shall take reasonable steps to ensure that Customer’s personnel, subcontractors, and personnel of such subcontractors, if any, comply with this Section, which steps shall include obtaining enforceable written agreements from Customer’s personnel and subcontractors and requiring enforceable written agreements from personnel of subcontractors binding such entities and individuals to obligations of confidentiality no less restrictive than those set forth in this Agreement. Customer agrees that if it is required by law to disclose the Confidential Information, Customer shall first give written notice of such required disclosure to TMPros and TMPros shall have a reasonable opportunity to prevent or limit the third party disclosure. Customer acknowledges that monetary damages may not be sufficient remedy for unauthorized disclosure or use of Confidential Information and that TMPros may seek without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. The obligations under this Agreement shall: (a) with regard to the Trade Secrets, remain in effect as long as the information constitutes a Trade Secret under applicable law; and (b) with regard to the Confidential Information, remain in effect during the term of this Agreement and for a period of five (5) years thereafter.
6.4. Non-Disclosure and Publicity: Neither Party shall disclose to any third party the terms and conditions of the Agreement without the prior written consent of the other Party.
7. Representations And Warranties:
7.1. Customer: Customer warrants and represents that (a) Customer has full power and authority to enter into this Agreement; (b) the signatory to this Agreement possesses all necessary authority to enter into this Agreement with TMPros in all respects and render it effective; and that Customer shall comply with all applicable federal, state, and local laws, ordinances, regulations and codes in its use of the Services. The laws and regulations include United States export control laws. Customer shall adhere to the laws of foreign countries, particularly if traveling internationally with a device used in conjunction with an TMPros Service. Customer represents that the address provided to TMPros for billing purposes is either Customer’s residential or business street address. Customer warrants that the DIDs it has been assigned by TMPros when utilized by Customer to place outbound calls shall at all times accurately reflect the name of Customer as has been provided by Customer to TMPros. The out-pulsed caller identification information shall not be altered, manipulated or modified by Customer in any such manner that can cause harm, injury or misrepresent to the called party the nature of the call and shall at all times remain in compliance with the provisions of the Truth in Caller ID Act. (the “Act”).
7.2 Telemarketing: Customer further warrants and represents that it will adhere to all federal, state, and local laws, ordinances, regulations, and codes applicable to telemarketing. These laws include, but are not limited to the Federal Trade Commission’s Telemarketing Sales Rule (“TSR”), the Federal Communication Commission’s Telephone Consumer Protection Act (“TCPA”), and the federal Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Under these laws, Customer’s use of the Services may be restricted. For example, under the TSR, a telemarketer is required to periodically search the National Do Not Call Registry (“DNC Registry”) (currently every 31 days) and to avoid placing certain telemarking calls to those listed in the DNC Registry. A telemarketer’s failure to do so could subject the telemarketer to substantial fines (currently up to $16,000 for each call). Other restrictions can include call monitoring, times telemarketing calls are permitted, use of prerecorded telephone messages, placing “abandoned” calls, advanced called party consent for certain telemarketing calls, calls to cell phones, and disclosures required by law. Use of text messages may be subject to many of the same restrictions as voice calls. For telemarketing, Customer is solely responsible for obtaining and maintaining written consent for those who may be called, in accordance with applicable law. Customer shall stop calling any party who indicates in any manner that the party withdraws their consent to be called. The telemarketing laws affecting outbound calling have changed over the past several years and are expected to continue to change. This paragraph is not intended to provide you with a complete list of all applicable law. You are strongly advised to consult with an attorney knowledgeable in this area of law prior to using the Services for telemarketing
7.3 Do Not Call Rules for Telemarketers: Federal Do Not Calls rules require that companies that telemarket or engage in telephone solicitations adhere to the requirements set forth in 47 C.F.R. section 64.1200 (FCC) and 16 C.F.R. Part 310 (FTC), among other laws and regulations. Customer has the sole responsibility for ensuring Customer checks the national Do Not Call Registry (“DNC Registry”) periodically, as prescribed by law, and is not calling any party on the DNC Registry. Customer is solely responsible that any lead lists / contact lists / automatic dialing lists Customer uses do not violate the TCPA or TSR rules, or any other laws, rules, or regulations. TMPros assumes no liability for any such lead list / contact list / automatic dialing list that Customer uploads, downloads or uses, regardless of the source of the list. TMPros assumes no liability for any equipment or malfunction of equipment software used to upload, download, block, or dial telephone numbers called by or on behalf of Customer.
7.4. CPN/Pseudo CPN Requirements for Telemarketers: Per the Federal Trade Commission (“FTC”), telemarketers are required to transmit their telephone number to Caller ID services. As such, all telemarketers using TMPros commercial services are required to provide CPN/pseudo-CPN in compliance with federal rules.
7.5 Call Recording and Monitoring: Customer further warrants and represents that it will adhere to all federal, state, and local laws, ordinances, regulations, and codes applicable to telephone call monitoring and recording. These laws can differ from state to state. Some state law, such as the California Invasion of Privacy Act, places strict limitations on the recording or monitoring of inbound and outbound telephone conversations.
7.6. Possible Termination or Suspension for Violations of Laws: If TMPros determines, in its sole, reasonable discretion that Customer is not adhering to telemarketing laws and regulations, if Customer is harassing individuals or businesses, or if Customer is otherwise violating telecommunications law, TMPros may consider such conduct a breach of this Agreement. In such event TMPros reserves the right, among other remedies, to suspend or terminate Customer’s Service after written notice to Customer.
7.7. Enhanced Traffic: For Customers utilizing TMPros’s long distance or long distance SIP trunking products, Customer represents and warrants that each call originated to TMPros as Native IP traffic meets the criteria defined as (i) traffic that originates as IP from the originating caller, and (ii) is then transported as IP from Customer to TMPros. Customer is prohibited from intermingling traffic or for utilizing these services for anything other than SIP originated or terminated service in accordance with all applicable federal and state regulations. Customer expressly agrees, represents and warrants that all long distance or SIP trunking traffic delivered by Customer to TMPros is SIP-originated in accordance with all applicable federal and state law and regulation and, without limiting the foregoing, it will not use the Services to originate or terminate TDM or voice calls in a manner that bypasses applicable switched access or other charges.
7.8. IP Originated Traffic for SIP Trunking Services: For Customer utilization of TMPros’s SIP Trunking service products, Customer represents and warrants that all user traffic is IP originated. “IP Originated” shall mean voice traffic which Customer represents and certifies as utilizing TCP/IP as a transmission protocol from the Customer’s originating equipment (i.e. SIP phones, SIP PBX, TDM to SIP Gateway, IP-adapter, etc.) to a TCP/IP gateway. Traffic identified as non-IP originated is subject to incremental $.04 per minute charges.
7.9. TMPros: TMPros warrants that (a) TMPros has full power and authority to enter into this Agreement and convey the rights conveyed herein; and (b) the signatory to this Agreement possesses all necessary authority to enter into this Agreement with TMPros in all respects and render it effective.
7.10. TMPROS SPECIFICALLY AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER OR THE FACILITIES AND EQUIPMENT FURNISHED PURSUANT TO THE AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. IN NO EVENT SHALL TMPROS OR ANY AFILLIATED PERSON OR ENTITY BE LIABLE TO CUSTOMER OR ANY AFFILIATED PERSON OR ENTITY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, RELIANCE, COST OF COVER, SPECIAL, PUNITIVE OR SIMILAR OR ADDITIONAL DAMAGES, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, INCURRED OR SUFFERED AS A RESULT OF UNAVAILABILITY, PERFORMANCE, NON-PERFORMANCE, TERMINATION, BREACH, OR OTHER ACTION OR INACTION UNDER THE AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST REVENUES OR PROFITS, LOSS OF ABILITY TO PERFORM, LOST CONTRACTS, COSTS OF THIRD-PARTY REPAIR OR REPLACEMENT, OR FAILURE OF 911 OR OTHER FEATURES, EVEN IF CUSTOMER OR ANY AFFILIATED PERSON OR ENTITY ADVISES TMPROS OR ANY AFFILIATED PERSON OR ENTITY OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN THE EVENT A VENDOR(S) IS EMPLOYED ON BEHALF OF THE CUSTOMER, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR PAYMENT TO THE VENDOR EMPLOYED WITHOUT CLAIM TO TMPROS. TMPROS SHALL NOT BE RESPONSIBLE FOR PAYMENT OF ANY VENDOR CHARGES INCURRED BY CUSTOMER OR ANY OTHER PARTY, WHETHER OR NOT SUCH CHARGES ARE AS A RESULT OF ERROR OR OMISSION BY TMPROS OR ANY OTHER THIRD PARTY. IN THE EVENT TMPROS DISPATCHES A VENDOR, LOCAL EXCHANGE CARRIER OR OTHER TECHNICIAN ON BEHALF OF CUSTOMER, AND IT IS DETERMINED THAT THE DISPATCH WAS DUE TO A CUSTOMER WIRING, EQUIPMENT OR OTHER CUSTOMER RELATED ISSUE, THEN CUSTOMER WILL BE RESPONSIBLE FOR PAYMENT OF COSTS INCURRED BY TMPROS FOR THE DISPATCH. TMPROS SHALL NOT BE RESPONSIBLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING FROM THE INSTALLATION, MAINTENANCE OR REMOVAL OF EQUIPMENT OR THE PROVISIONING OF SERVICES, AND CUSTOMER HEREBY INDEMNIFIES AND HOLDS HARMLESS TMPROS FROM AND AGAINST ANY LIABILITIES INCLUDING ATTORNEY’S FEES ARISING OUT OF SUCH DAMAGE OR INJURY. TMPROS MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES ARE FREE OF RIGHTFUL CLAIMS BY ANY THIRD PARTY FOR THE INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM TMPROS, OR ITS EMPLOYEES, CONTRACTORS, OR AGENTS, REGARDING THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER’S REMEDIES FOR CLAIMS UNDER THIS AGREEMENT SHALL BE LIMITED TO OUTAGE CREDITS AS DESCRIBED HEREIN.
8.1. Customer’s Indemnification of TMPros: Customer will defend and indemnify TMPros, its employees, directors, officers and agents, from and against any damages, penalties, interest, expenses, liabilities, suit, proceeding or other claim (asserted or threatened) brought by an entity that is caused by, arises from, or relates to: (a) damage to real or tangible personal property, personal injuries (including death) arising out of the gross negligence or willful act or omission of Customer in the use of the Service; (b) any fraud arising from Customer’s use of the Service; (c) any failure of Customer to properly collect and/or remit taxes of services ordered hereunder; (d) representations regarding the nature of Customer’s traffic and any use, operation or resale of Service by Customer in contravention of this Agreement, including without limitation, claims of libel, slander, unauthorized use of copyright or trademark by Customer or the business activities and practices of Customer arising from Customer’s use of the Service; (e) Customer’s use of the AireContact Service; (f) Customer’s engagement of, or relationship or interaction with, any third party service provider;
8.2. Truth in Caller ID Act Indemnification: Customer shall forever indemnify, defend and hold TMPros harmless from any demand, claim, action, proceeding, fine, penalty or assessment brought or initiated by third parties, in their individual capacity, or regulatory agencies or authorities including, but not limited to, the Federal Communications Commission, State Attorneys General, Federal Trade Commission, state regulatory authorities (where concurrent jurisdiction exists) for any alleged or actual violation by Customer or Customer affiliates (collectively “Customer”) of the Truth in Caller ID Act. This specific indemnity shall be a blanket indemnification for all consequences, whether known or unknown on the part of TMPros or Customer that may befall TMPros as a result of any such actual or alleged violation by Customer of the “Act”. This indemnification shall include, but not be limited to, any cost of defense incurred response required or documentation requested of TMPros due to any such violation of the Act by Customer. In the event parties other than Customer (e.g. Customer’s end-users) shall have use of the telecommunications services provided by TMPros through Customer, then Customer agrees to forever indemnify and hold TMPros and any third party provider or operator of facilities employed in provision of the telecommunications services provided by TMPros harmless from and against any and all claims, demands, suits, actions, losses, damages, assessments or payments which those parties may assert relating to any violation of the Truth in Caller ID Act. Customer agrees to reimburse TMPros for all reasonable costs and expenses incurred by TMPros due to TMPros’s direct participation (either as a party or witness) in any administrative, regulatory, criminal or civil proceeding concerning Customer if TMPros’s involvement in said proceedings is based upon Customer’s actions or inactions resulting in a violation of the Truth in Caller ID Act.
8.3. Intellectual Property: If a Service provided by TMPros becomes, or if TMPros reasonably believes a Service it is providing may become, the subject of a suit, proceeding or other claim by an entity (not a party to or an affiliate of a party to this Agreement) that the Service directly infringes the U.S. patent, trademark or copyright rights (“Intellectual Property’) of such entity, TMPros shall, at its own expense and option: (a) procure the right for TMPros to continue to provide the Service; or (b) modify or replace the Service with a different service that has substantially similar functionality; or (c) discontinue providing or direct the cessation of any use of the Service and refund to Customer a pro-rated portion of any charges paid for the affected Service through the date of Service discontinuation or cessation. Notwithstanding the foregoing, TMPros will have no obligation to defend or indemnify Customer, and Customer will defend, indemnify and hold harmless TMPros for any suit, proceeding or claim arising out of: Customer’s: (a) designs, specifications, modifications, or configurations; (b) combination of Customer hardware or software, or other materials, services or methods with the Service; or (c) use, operation or resale of the Service in contravention of its obligations and responsibilities.
8.4. Procedure: If an entity makes a claim against TMPros or Customer, the Party in receipt of such claim (“Indemnified Party”) will promptly notify the other Party (“Indemnifying Party”) in writing no later than sixty (60) days after receipt of such notification of a potential claim. The Indemnifying Party may assume sole control of the defense of such claim and all related settlement negotiations. The Indemnified Party will provide the assistance, information and authority necessary to assist the Indemnifying Party in its obligations. Neither TMPros nor Customer may settle any such matter without the consent of the other as to any settlement that imposes an obligation on, or requires any admission by, the other Party. Failure of the Indemnified Party to promptly notify the other will not relieve the Indemnifying Party of its obligations except to the limited extent such delay prejudices the Indemnifying Party. Additionally, if the Service as and in the manner provided by TMPros is determined by a court of competent jurisdiction to have directly infringed on an entity’s Intellectual Property rights, or if such claim is settled, TMPros shall indemnify Customer for its reasonable legal fees incurred to defend itself against such claim up to and including the time of final disposition or settlement of such claim and any payment required to be made by Customer pursuant to such judgment or settlement.
8.5. Survival: These Customer and TMPros indemnifications will survive this Agreement.
9. Limitations on Liability:
9.1. Underlying Carriers: TMPros is not liable for any act or omission by any other company or companies furnishing a portion of the Services to Customer.
9.2. Direct Damages: Even if advised of the possibility of losses or damages, TMPros shall not be liable, except as set forth herein, for any losses or damages resulting from: (a) its provisioning
of Service to Customer, including but not limited to any customizations for Customer for the TMPros Cloud PBX Services; (b) any act or omission of Customer, those using the Customer’s Service or third party entities furnishing products used in connection with Service; or (c) the loss or destruction of Customer data resulting from the use of Service.
9.3. Limitation of TMPros Liability for Direct Damages: TMPros’s liability to Customer for any damage, including but not limited to property damage to Customer premises, service outages/problems, and personal injury, shall in no event be greater than an amount equal to the sum of the payments made by Customer to TMPros during the three months immediately preceding the event for which losses or damages are claimed. By entering into an Agreement and remaining a Customer, Customer manifests its acceptance of this limitation on direct damages as fair and reasonable.
9.4. Indirect or Consequential Damages: Neither TMPros nor Customer shall be liable to the other for any indirect, incidental, exemplary, punitive or other consequential damages, whether or not foreseeable, including, but not limited to, damages from the loss of data, business goodwill or profits, savings or revenue, harm to business, whether under contract, tort, including negligence, strict liability or any other theory of liability. A party’s out-of-pocket costs for damages recovered by a third party shall be deemed to be indirect damages suffered by such party, except to the extent such damages are part of a claim for which indemnification is due under Section 7.
9.5. Service Interruptions: TMPros’s sole liability under this Agreement for interruption of service or failure of equipment shall be limited to that amount of TMPros’s actual fixed charges incurred by Customer during the period of such interruption. TMPros shall not be liable for any interruption caused by the negligence or willful act or omission of Customer or any third party furnishing any portion of the service hereunder. Notwithstanding anything to the contrary, Customer’s sole and exclusive remedy for any service related claim will be set forth in each applicable TMPros standard Service Level Agreement (“SLA”).
9.6. Delays: TMPros shall not be liable to Customer for losses or damages resulting from its inability to provide Service or from any delay in meeting a scheduled Start of Service Date or a scheduled change in service date.
9.7. Force Majeure Events: In no event shall either Party have any claim or right against the other Party for any failure of performance (except for TMPros’s right to seek payment of all accrued charges) due to causes beyond that Party’s reasonable control, including, but not limited to: acts of God, earthquake, fire, explosion, vandalism, fiber optic cable cut, storm, flood or other similar catastrophes; any law, order, regulation, direction, action or request of the United States Government, or of any other government, including state and local governments having or claiming jurisdiction over either of the Parties or of any department, agency, commission, court, bureau, corporation, or other instrumentality of any one or more said governments, or of any civil or military authority; national emergencies; unavailability of materials or rights-of-way; insurrections; acts of terrorism; riots; wars; strikes; lock-outs, work stoppages or other labor difficulties; actions or inactions of third party providers or suppliers; or supplier failures, shortages, breaches or delays.
9.8. Facilities, Services, Equipment or Systems of Others: TMPros shall not be liable for the unavailability, or deficient performance, of any facilities, services, equipment or systems used in connection with the provision of Services that are under the control of Customer or any third party, even if TMPros has acted as the Customer’s agent in procuring such facilities, services, equipment or systems from third parties. Customer’s rights with regard to the unavailability or deficient performance of such facilities, services, equipment or systems not provided by TMPros shall be strictly as established by the supplying entity. Customer shall be liable to TMPros for any loss, theft, or damage to any of TMPros’s equipment located on Customer’s premises, however caused.
9.9. Passwords: Customer will be asked to create a password in order to gain access to Customer’s account information on-line or when contacting an TMPros agent by phone. Customer agrees to keep all passwords and account information confidential and Customer is solely responsible for any liability or damages resulting from Customer’s failure to maintain that confidentiality, and for all activities that occur under Customer’s password. Customer must immediately notify TMPros if Customer suspects any breach of security such as loss, or unauthorized disclosure or use of Customer’s password and account.
9.10. Electronic Recording: Customer acknowledges and understands that there are federal and state statutes governing the electronic recording of telephone conversations and that TMPros will not be liable for any illegal use of the service. Because Customer circumstances vary widely, Customers should carefully review their own circumstances when deciding whether to use the recording features of the service. It is the Customer’s sole responsibility i) to determine if the electronic recordings are legal under the applicable federal and state statutes and regulations, and ii) to fully comply with all such applicable federal and state statutes and regulations. TMPros expressly disclaims all liability with respect to Customer’s recording or monitoring of telephone conversations. TMPros is not responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings or monitoring conversations or the use of its products by Customer whether legal or illegal. Customer shall fully hold TMPros harmless and indemnify TMPros from all damages and/or liabilities or potential liabilities arising from or related to Customer’s unlawful recording or monitoring of any telephone conversation using TMPros’s service.
9.11. Customer’s Failure to Fulfill Obligations: TMPros shall not be liable to Customer or any third party for Customer’s failure to fulfill its obligations, including, without limitation, Customer: (a) obtaining, installing and maintaining all necessary equipment, materials, and supplies for interconnecting Customer or third party facilities, services, equipment or systems to Services; (b) securing all licenses, permits, approvals, rights-of-way, access rights, including ingress and egress from buildings, and other arrangements necessary to install, receive and use Services; (c) ensuring that Customer or third-party facilities, services, equipment or systems interface properly with Services; that the signals delivered to TMPros’s Service are fully compliant with industry standards; and that such signals do not damage TMPros property or personnel, or degrade Service to other Customers of TMPros, and (d) Customer use of non-approved Services.
9.12. Misuse of Customer Service: TMPros shall neither provide credit allowances nor otherwise be liable for the use, misuse or abuse of Customer’s Service by Customer, its agents, employees or any third parties including, without limitation, members of the public. If TMPros co-operates with Customer by recommending potential solutions to reduce or eliminate the unauthorized use of Customer’s Service, TMPros’s recommendation shall not be deemed to be promises or guarantees by TMPros that the unauthorized use of Customer’s Service will be reduced or eliminated, and in no event shall TMPros incur any liability in connection with those undertakings to Customer or any third party. In all instances, Customer shall be responsible for its facilities, services, equipment or systems interconnected with TMPros’s Service. Customer shall be responsible for maintaining the security of any networks that Customer controls, including, but not limited to, local area networks, private networks, and/or virtual private networks.
9.13. Billing Errors: TMPros’s obligation with respect to any errors resulting in Customer overpayments for Service is limited to granting invoice credits equal to the dollar amounts erroneously billed. Under no circumstance will any billing error affect the Customer’s obligation to pay for Services rendered and used.
9.14. 911 Limitation of Liability: Neither TMPros nor its underlying carriers, or any other third parties involved in the routing, handling, delivery, or answering of emergency services or in responding to emergency calls, nor their officers or employees, may be held liable for any claim, damage, loss, fine, penalty or cost (including, without limitation, attorneys’ fees), and Customer hereby waives any and all such claims or causes of action, arising from or relating to the provision of all types of emergency services to Customer. Customer further indemnifies and holds TMPros harmless from any claim or action for any caller placing such a call without regard to whether the caller is an employee of the Customer. Customer holds harmless and indemnifies TMPros from any claim or action arising out of misroutes of any 911 calls, or whether local emergency response centers or national emergency calling centers answer a 911 call or how the 911 calls are handled by any emergency operator, including operators of the national call center. The limitations apply to all claims regardless of whether they are based on breach of contract, breach of warranty, product liability, tort or any other theories of liability.
9.15. Customer is solely responsible for its interaction and relationship with any third party provider that it may engage for any purpose, including for use with the AireContact Service. If Customer has a dispute with a third party service provider, Customer agrees that TMPros is not liable for any claims or damages arising out of or connected with such dispute. TMPros reserves the right, but has no obligation, to monitor any such dispute.
10. Term and Termination:
10.1. Term: The term of the Agreement shall commence on the Start of Service Date and shall continue for the term as set forth in the applicable TSO. After such initial term, the Agreement shall automatically renew for successive one-year terms unless terminated in writing by TMPros or by Customer via mail pursuant to this Agreement. Unless otherwise stated, the initial term shall be twenty-four (24) months. The termination of the Agreement shall have the effect of terminating each TSO. At the discretion of TMPros, an individual TSO may be terminated without terminating the Agreement.
10.2. Termination: TMPros may elect in its sole discretion to terminate this Agreement and any outstanding TSO(s) immediately for any reason enumerated under Section 2.6 above. TMPros may terminate this Agreement or any TSO(s), at its option upon providing Customer with written notice of such election. In such event, the effective date of the termination shall be thirty (30) days from the date of such notice. TMPros shall not be liable to Customer or any third party for any reason for terminating or suspending Customer’s use of or access to the Services. Customer may cancel the Service by emailing TMPros at [email protected] , AND by giving written notice to TMPros (as provided below in paragraph 10.3, “Notice”), with the words “Attention: Disconnection Department, Service Disconnection Request” prominently written on the outside of the envelope, no less than forty-five (45) days prior to the effective date of such cancellation. REGARDLESS OF WHETHER A THIRD PARTY PORTS THE CUSTOMER’S PHONE NUMBER TO A NEW SERVICE, SERVICES WILL CONTINUE TO BE DELIVERED AND BILLED THROUGH THE DISCONNECTION PERIOD FOLLOWING A PROPER NOTICE OF DISCONNECTION. TMPros shall begin the disconnection process upon receipt of notification from the Customer. The disconnection process shall not begin until all Toll Free numbers have been removed from the Customer’s services. Charges shall continue until TMPros and any underlying carriers complete the disconnection process, or 45 days, whichever is later. TMPros recommends Customer ensures any replacement services are operational before requesting disconnection, as TMPros is not responsible for any interruption or failure of service once disconnection has been requested by Customer. Once disconnection has been requested, service may disconnect at any time without prior notice to Customer. If the effective date of cancellation is prior to the end of the Minimum Term, or any renewal term, Customer shall pay TMPros an early termination charge as defined in paragraph 3.17, “Early Termination Liability.”
10.3. Notice: All notices, demands, consents, requests, approvals, Customer name and address changes, billing inquiries and requests, authorizations, or other communication which Customer is required or desires to give or make to TMPros shall be in writing and shall be effective i) immediately upon hand delivery, ii) on the next business day if sent by a generally recognized overnight delivery service (subject to confirmation of receipt from the service), or iii) on the date received if sent by United States certified or registered mail, return receipt requested. Any faxed notice must be followed up with a written notice which is either hand-delivered; mailed either certified or registered mail; or delivered by a reputable overnight carrier, as per the above. Such Notices shall be sent to the address or fax number of TMPros as set forth below:
Technology Management Professionals LLC
Attention: Legal Department
PO Box 280
Atwater, CA 95301
Notices to Customer shall be sent to the billing email address on file in the TMPros billing system.
Rate change notices may be delivered by TMPros to Customer by email and shall be deemed to be delivered when received by Customer servers.
11. Miscellaneous Provisions:
11.1. Entire Agreement: This Agreement, including the Terms, any underlying TSOs, any supplemental product terms and conditions, the AUPs, and state or federal tariffs filed by TMPros, shall constitute the entire agreement between the Parties with respect to the subject matter of this Agreement and supersede all prior statements, agreements, discussions, proposals, representations or warranties, whether written or oral, on this subject matter, and there are no representations or promises which are not expressly set forth herein. No statement, representation or warranty made by any agent or representative of TMPros regarding the Services, facilities or equipment to be provided hereunder or the rates therefor shall be binding upon TMPros unless expressly included herein.
11.2. Compliance With Law: In conjunction with the Agreement, each Party shall at all times comply with all applicable federal, state, and local statutes, ordinances, regulations and orders of any commission or other government body.
11.3. Change of Contact Information: Customer acknowledges that it is Customer’s sole responsibility to supply immediate notice to TMPros if Customer changes any of its contact information. If at any time Customer’s name or billing information changes from that which is set forth below, Customer shall have five (5) days to inform TMPros of such changes in accordance with the Notice provisions set forth in the Agreement.
11.4. Relationship of Parties: Neither the Agreement nor the provision of Service hereunder shall be deemed to create any joint venture, partnership or agency between TMPros and Customer; the Parties are independent contractors and shall not be deemed to have any other relationship. Neither Party, nor any agent or representative of either Party, shall have, or hold itself out as having, the power or authority to bind or create liability for the other Party by its intentional or negligent act and no claimed act of authority shall have any binding effect.
11.5. Amendment: Except as otherwise provided herein, the terms and conditions of this Agreement may not be modified or amended other than by a document that expressly states its intention to modify this Agreement, and such document is signed by hand in ink by both Parties.
11.6. Signature Authority: TMPros shall not be bound by the terms of any TSO, or any supplemental document or agreement of any kind, unless signed by hand in ink by an Officer of TMPros.
11.7. Survivability: The terms and conditions contained in the Agreement that, by their sense and context, are intended to survive the performances of the Parties shall survive the completion of those performances and the Agreement’s termination. These include, without limitation, the making of payments due under the Agreement.
11.8. Governing Law, Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to its principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods (“CISG”) shall not apply. Customer and TMPros both hereby irrevocably agree that any suit brought by either Party arising out of or relating to this Agreement shall be brought exclusively in the Superior Court of California, County of Merced, and Customer and TMPros both hereby submit to the personal jurisdiction of such court. The Parties both hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which either Party may raise now, or hereafter have, to the laying of the venue of any such suit, action or proceeding brought in such court and any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum. THE PARTIES HEREBY EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY A PARTY AGAINST ATHE OTHER PARTY RELATING TO THIS AGREEMENT. In the event an action is brought or an attorney is retained by either Party to enforce the terms of this Agreement or to collect any moneys due hereunder, the prevailing Party will be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorney’s fees, court costs, reasonable costs of investigation and other related expenses incurred in connection therewith.
11.9. No Waiver: Neither TMPros’s nor the Customer’s failure, at any time, to enforce any right or remedy of the Agreement will be interpreted as a waiver of such Party’s right to enforce each and every provision of the Agreement in the future. No waiver of any provision of this Agreement, or any rights or obligations of either Party under this Agreement, shall be effective, except pursuant to a written instrument signed by the Parties waiving compliance, and any such waiver shall be effective only in that specific instance and for the specific purpose stated in such writing.
11.10. Severability: In the event any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid, illegal or unenforceable by a court with jurisdiction over the Parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intention of the Parties in accordance with the applicable law, and the remainder of this Agreement shall remain in full force and effect. The illegality or unenforceability of any provision of this Agreement does not affect the legality or enforceability of any other provision or portion of this Agreement.
11.11. Assignment: TMPros may assign in whole or in part its rights or duties under the Agreement without prior notice to Customer and upon such assignment TMPros shall be released from all liability hereunder. Customer may assign the Agreement only with TMPros’s prior written consent. Subject to these restrictions, the Agreement shall inure to the benefit of and be binding upon the heirs, successors, subcontractors, and assigns of the respective Parties.
11.12. Purchase Order: A Customer purchase order or similar document is evidence only of Customer’s intention to purchase Services. Except for a properly signed, written provision specifically evidencing TMPros’s intent to be bound by the terms and conditions of a purchase order between Customer and TMPros, the terms and conditions of a Customer purchase order or similar document will be disregarded and have no force or effect; instead, the terms and conditions of the Agreement between Customer and TMPros will govern.
11.13. No Third-Party Beneficiaries: Except to the extent explicitly provided, this Agreement and any TSO(s) is being executed for the sole and exclusive benefit of TMPros and Customer and is not for the benefit of any third parties. The execution of the Agreement and any TSO(s) shall not create any obligations or confirm any rights on any person or entity other than the Parties hereto.
11.14. Interpretation: Neither this Agreement nor any TSO may be construed or interpreted for or against TMPros because TMPros drafted any of its provisions.
11.15. Headings: Headings contained herein are provided for reference and convenience only. Headings do not affect or limit the interpretation, contents or terms of this Agreement.
11.16. Execution in Counterparts and by electronic signature: The Parties hereby acknowledge that any TSO may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument. The Parties intend that any counterpart copy signed and exchanged (including signed counterparts exchanged via an electronic signature web application or email) shall be fully binding as an original handwritten executed copy and all such copies together shall constitute one instrument.