1. TERMS AND CONDITIONS. THESE TERMS OF SERVICE, including the Order(s) and any applicable Service Attachments, which by this reference are incorporated herein (“Agreement”), are a binding agreement between VSR Network Technologies., a California Limited Liability Corporation with its primary office at 11760 Atwood Rd STE 4, Auburn, CA 95603, (“VSR”), and the legal entity identified in the Order (“Customer”). VSR and Customer may be individually referred to as a “Party” or collectively as the “Parties.” VSR provides services and equipment intended solely for business use, pursuant to the terms and conditions set forth in this Agreement and on the condition that customer accepts and complies with this Agreement. By electronically signing this Agreement, Customer (a) accepts this agreement and agrees that Customer is legally bound by its terms; and (b) represents and warrants that: (i) its representative is 18 years of age or of legal age to enter into a binding agreement; and (ii) has the right, power, and authority to enter into this agreement on behalf of the corporation, governmental organization, or other legal entity, and to bind such organization to these terms. If Customer does not agree to the terms of this agreement, neither Customer nor its End Users may download, install, or use the services or equipment.
2. MANDATORY ARBITRATION.
2.1. Arbitration Procedures. PLEASE READ THIS PROVISION CAREFULLY. EXCEPT AS SET FORTH BELOW, CUSTOMER AND VSR WILL ARBITRATE ANY DISPUTES OR CLAIMS IN ANY WAY RELATED TO OR ARISING OUT OF THE AGREEMENT, ANY BREACH OF THE AGREEMENT, OR THE PROVISION OF SERVICES OR PRODUCTS TO CUSTOMER, INCLUDING ANY BILLING DISPUTES (collectively, “CLAIMS”). CLAIMS SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION ADMINISTERED BY AMERICAN ARBITRATION ASSOCIATION (“AAA”). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to Services or Products provided or billed to Customer if Claims are asserted against VSR in the same proceeding. ARBITRATION WILL BE CONDUCTED UNDER THE AAA’S PUBLISHED COMMERCIAL ARBITRATION RULES. Customer and VSR agree to bear their own fees, costs, and expenses, including those for any attorneys, experts, and witnesses. The place of arbitration shall be in Placer County, California U.S.A. The language of the arbitration shall be English.
2.2. PREFILING NOTICE OF CLAIM. BEFORE INSTITUTING ARBITRATION OR SUIT, CUSTOMER WILL PROVIDE VSR WITH AN OPPORTUNITY TO RESOLVE THE CLAIM BY SENDING A WRITTEN DESCRIPTION OF THE CLAIM TO VSR AT THE ADDRESS OR EMAIL ADDRESS BELOW. IF VSR IS NOT ABLE TO RESOLVE THE CLAIM WITHIN 30 DAYS OF RECEIPT OF NOTICE, THEN CUSTOMER OR VSR MAY INITIATE ARBITRATION OR SUIT AS DESCRIBED IN SECTION 2.1. All claim notices should be sent to: Director of Customer Service VSR Network Technologies, LLC 11760 Atwood Road Suite 8, Auburn CA 95603 or email@example.com. CUSTOMER WILL NOT DEMAND ARBITRATION OR FILE SUIT UNLESS CUSTOMER FOLLOWS THE FOREGOING PROCEDURES IN THIS SECTION 2.2 AND THIS SECTION 2.2 MAY BE PLEADED AS A FULL AND COMPLETE BAR AND DEFENSE TO, AND MAY BE USED AS A BASIS FOR AN INJUNCTION AGAINST, ANY ARBITRATION, ACTION, SUIT, OR OTHER PROCEEDING INSTITUTED IN BREACH OF THIS SECTION.
2.3. TIME LIMITATION. Customer agrees that regardless of any statute or law to the contrary, any suit or arbitration arising out of or related to use of the Services, or the Agreement must be filed within one (1) year after the earlier of (a) when such claim or cause of action arose or (b) termination of Services to Customer or be forever barred.
2.4. PERSONAL JURISDICTION. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 2, Customer and VSR agree to submit to the personal and exclusive jurisdiction of the state and federal courts within Placer County, California, and waive any objection as to venue or inconvenient forum in such courts.
3. DEFINITIONS. The following terms shall have the meanings set forth below.
3.1 “Agent” means a Customer employee or contractor who may use the Services, the total number of Agents being the maximum number of personnel who may use the Services at any one time.
3.2 “Customer Data” means any data, information or other materials of any nature whatsoever provided to VSR by Customer in the course of implementing or using the Services.
3.3 “Documentation” means user manuals and other documentation relating to the Services, which are made available to Customer by VSR, in the form of recorded documentation on optical or magnetic media, accessible via the Internet or in the form of printed media.
3.4 “Implementation Services” means the services selected by Customer, as indicated on the Sales Order, to be provided by VSR in connection with the set up and implementation of the Services. As part of the Implementation Services, Customer will receive limited training in the set up and activation of the Services during the hours from 8:00am to 5:00pm Pacific Time Monday through Friday.
3.5 “Initial Payment” means the initial payment set forth in the Sales Order consisting of the fees for Equipment, Implementation Services and the Service Fees for the first month.
3.6 “Login” means each separate, named individual login account within a Customer account.
3.7 “Professional Services” means work VSR will perform for Customer as specified in individual statement(s) of work (“Statement(s) of Work”) to be executed by the parties from time to time on the terms and conditions specified in the Agreement.
3.8 “Service Fee” or “Service Fees” means the monthly or annual fees set forth in the Sales Order to be paid by Customer to VSR as consideration for VSR provision to Customer of the Services.
3.9 “Sales Order” means the document executed by Customer and VSR, containing (i) a price and quantity of Services, and Implementation Services to be provided to Customer by VSR under the Agreement, along with associated telecommunications fees; (ii) the Services to be provided; and (iii) such other options provided on the Sales Order as Customer may elect to apply to the Services.
3.10 “Service Plan” means the monthly or annual subscription plan a Customer agrees to in the Sales Order.
3.11 “Sales Order Addendum” means a Sales Order agreed to by Customer subsequent to the initial Sales Order.
3.12 “Services” means the products or services that are being provided to Customer as described in the Sales Order, including any Additional Services set forth in a Sales Order Addendum accepted by VSR.
3.13 “Software” means any proprietary software (including any documentation relating to such software) owned by, licensed by, or which VSR has a right to sublicense under this Agreement, which software is either provided to Customer under this Agreement or is used in or used to provide the Services.
4. VSR SERVICES. During the Initial Term or Renewal Term of this Agreement, VSR will provide the Services, set forth initially and eventually in the finalized sales order, including telephone hosted services and other services subject to the terms and conditions herein. VSR hereby grants Customer access to the Services for use by the number of Devices and Logins set forth in the Sales Order, for Customer’s own internal business purposes, which shall be deemed to include activities Customer may perform on behalf of its own customers. VSR grants Customer the right to use the Documentation in connection with its use of the Services.
4.1. CONDITIONS. Customer acknowledges and agrees that VSR’s obligations to provide the Services are expressly conditioned upon (i) Customer’s payment of the fees for Professional Services and all Service Fees as and when due, and (ii) Customer’s satisfaction of the technical requirements set forth in the Documentation for the Services made available to Customer by VSR, as the same may be updated by VSR from time to time.
4.2. ADDITIONAL SERVICES. At Customer’s option, the number of Services may be increased at any time during the Initial Term or Renewal Term (any such increase, “Additional Services”) by agreeing to a Sales Order Addendum, signed by Customer and setting forth the specific Additional Services desired. Each Sales Order Addendum shall be subject to VSR’s acceptance, which shall be deemed given if VSR thereafter provides the Additional Services. Upon acceptance by VSR, such Sales Order Addendum shall be deemed an amendment to the Agreement, subject to all of the terms and conditions herein, and the Service Fees shall be increased to reflect the Additional Services, subject to the same pricing and payment terms as are set forth in the Sales Order. Additional Services shall be provided for a term that is coterminous with the Initial Term or Renewal Term of the Agreement.
4.3. IMPLEMENTATION SERVICES. VSR will use commercially reasonable efforts to perform the Implementation Services covered in the Initial Payment.
4.4. ADDITIONAL PROFESSIONAL SERVICES. If Customer requests Professional Services, such as support services not provided under this Agreement, training, or other consulting services, VSR may (but has no obligation to) provide such Professional Services or recommend appropriate outside consultants. If VSR agrees to provide such additional Professional Services at Customers request, fees for such Professional Services may be provided pursuant to a fixed fee or VSR ‘s standard time and material rates. Such additional Professional Services will be provided pursuant to an addendum and the other terms and conditions of this Agreement and may be described in an agreed-upon statement of work.
5.1. INITIAL TERM. The initial term of this Agreement (“Initial Term”) begins on the date that Customer enters into the Agreement and continues in force and effect for the duration of the service period of five years from the date of Service activation, installation or cutover.
5.2. RENEWAL. Except as set forth in Section 5.3, at the end of the Initial Term, the Agreement is automatically renewed for an additional one year period (a “Renewal Term”), and shall be renewed at the end of each Renewal Term for an additional one-year Renewal Term, unless Customer provides VSR, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, notification of intention to cancel the service.
5.3. MONTH-TO-MONTH RENEWAL. Instead of renewal under Section 5.2 or cancelation, a Customer shall have the option, upon expiration of the Initial Term or any Renewal Term, to renew the Agreement on a month-to-month basis at the then-current rates offered for the Services. Customer will be converted to a month-to-month basis if Customer provides to VSR, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, notification of intention to convert to month-to-month service. Cost for service will not be guaranteed and may increase.
6.1. TERMINATION FOR CONVENIENCE. Either party may terminate the Agreement upon thirty (30) days’ notice of termination. In accordance with section 10.7, disconnection fees may apply. If Customer transfers or ports their phone number to a service provider other than VSR, Customer must contact VSR to cancel the Services provided to Customer by VSR. VSR will continue to bill customer for services provided without a written cancellation notice.
6.2. IMMEDIATE TERMINATION. VSR shall be entitled, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason, including without limitation, misuse of the Services in any way, Customer’s breach of the Agreement, Customer’s failure to pay any sum due hereunder, suspected fraud or other activity by Customer that adversely affects the Services, VSR, VSR’s network or other Customer’s use of the Services. VSR shall be entitled to determine, at its sole discretion, what constitutes misuse of the Services and Customer agrees that VSR’s determination is final and binding on Customer. VSR may require, and if required, Customer shall pay, an activation fee as a condition to changing or resuming a terminated or suspended account.
6.3 EFFECT OF TERMINATION ON FEES. Upon termination of this Agreement for any reason, Customer shall be responsible for the full monthly Service Fee for the month in which termination occurs. Expiration or termination of the Agreement does not alleviate Customer of responsibility for paying all unpaid, accrued charges due hereunder.
7. 911 & SERVICE LIMITATIONS. The Federal Communications Commission (“FCC”) and Canadian Radio-television and Telecommunications Commission (“CRTC”) require that VSR provide E911 Service to all Customers who use VSR Services within the United States and Canada. Sections 7.1-7.7 apply to all Customers who use VSR Services within the United States. Section 7.8 applies to all Customers.
7.1 911 ACKNOWLEDGEMENT AND WARNING LABELS. CUSTOMER ACKNOWLEDGES THAT VSR’S EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT TRADITIONAL WIRELINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION 7 AND CUSTOMER AGREES TO NOTIFY ANY POTENTIAL USER OR AGENT OF THE SERVICES, WHO MAY PLACE CALLS USING CUSTOMER’S SERVICES, OF THE 911 LIMITATIONS DESCRIBED HEREIN. VSR WILL PROVIDE CUSTOMER WITH WARNING LABELS, IF REQUESTED BY CUSTOMER, REGARDING THE LIMITATIONS OR UNAVAILABILITY OF 911 EMERGENCY DIALING. CUSTOMER AGREES TO PLACE A LABEL ON AND/OR NEAR EACH TELEPHONE OR OTHER CUSTOMER PREMISE EQUIPMENT ON WHICH THE SERVICES MAY BE UTILIZED. IF ADDITIONAL LABELS ARE REQUIRED, CUSTOMER MAY REQUEST THEM FROM VSR. VSR WILL PROVIDE CUSTOMER WITH ADVISORY NOTICES REGARDING 911 EMERGENCY DIALING AND REQUEST ACKNOWLEDGMENTS FROM CUSTOMER. CUSTOMER AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT VSR HAS ADVISED CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH VSR E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING. VSR ADVISES CUSTOMER TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
7.2. ELECTRICAL POWER. CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
7.3. INTERNET ACCESS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OF CUSTOMER’S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE UNLESS CUSTOMER PURCHASES EQUIPMENT FROM VSR OFFERING INTERNET SURVIVABILITY.
7.4. NON-VOICE SYSTEMS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS INCLUDING HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, AND ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. VSR WILL NOT BE LIABILE FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
7.5. E911 SERVICE. VSR E911 SERVICE IS A MANDATORY COMPONENT OF ALL INBOUND/OUTBOUND TRADITIONAL FAX AND VOICE SERVICE PLANS. E911 SERVICE IS NOT OFFERED ON VIRTUAL NUMBERS, TOLL-FREE NUMBERS OR SIMILAR SERVICE ACCESSORIES OR ADD-ON SERVICE PLANS. E911 SERVICE IS ONLY AVAILABLE IN SELECTED AREAS. IF CUSTOMER SUBSCRIBES TO VSR E911 SERVICE, VSR WILL REGISTER THE PHYSICAL LOCATION OF CUSTOMER’S EQUIPMENT (PHONE, SOFTPHONE, ANALOG TELEPHONE ADAPTER (“ATA”) OR VIDEOPHONE) WITH VSR, AND CUSTOMER WILL UPDATE THE LOCATION WHENEVER THE PHYSICAL LOCATION OF SERVICE CHANGES. IF CUSTOMER SUBSCRIBES TO VSR MOBILE APPLICATIONS, CUSTOMER ACKNOWLEDGES THE PHYSICAL LOCATION REGISTERED FOR CUSTOMER’S EQUIPMENT (PHONE, SOFTPHONE, ATA OR VIDEOPHONE) WILL BE THE PHYSICAL LOCATION REGISTERED FOR THE MOBILE APPLICATION ASSOCIATED TO THE EQUIPMENT. CUSTOMER ACKNOWLEDGES THAT VSR’S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE PHYSICAL LOCATION CURRENTLY REGISTERED FOR THE ACCOUNT. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY VSR WILL BE BASED UPON THE PHYSICAL LOCATION PROVIDED TO VSR BY CUSTOMER. IN THE EVENT THAT THE PHYSICAL LOCATION HAS NOT BEEN UPDATED OR IS NOT COMPLETE, VSR MAY ATTEMPT TO ROUTE A 911 CALL BASED UPON THE BILL-TO OR SHIP-TO ADDRESSES ASSOCIATED WITH THE CUSTOMER’S ACCOUNT OR INITIAL ORDER.
7.6. E911 SERVICE CHARGE. CUSTOMERS THAT ARE REQUIRED TO SUBSCRIBE TO VSR E911 SERVICE WILL BE SUBJECT TO A MONTHLY E911 SERVICE CHARGE. THE MONTHLY E911 SERVICE FEE SHALL BE IN ADDITION TO THE APPLICABLE SERVICE FEES FOR THE ASSOCIATED LINE. THE MONTHLY CHARGE FOR VSR E911 SERVICE IS ASSESSED ON A “PER-LINE” (THAT IS, PER PHONE NUMBER BASIS), AND WILL BE SET AT A LEVEL THAT REIMBURSES VSR FOR THE DIRECT COSTS IT INCURS IN PROVIDING VSR E911 SERVICE, INCLUDING EXPENSES VSR INCURS, EITHER DIRECTLY OR INDIRECTLY, IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911 SURCHARGES, E911 AUTOMATIC LOCATION INFORMATION (ALI) DATABASE STORAGE, LINE INFORMATION DATABASE AND CALLER ID (LIDB/CNAM) EXPENSES, AND ANY OTHER TAXES OR SURCHARGES DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE PROVISION OF SERVICES TO CUSTOMERS SUBSCRIBING TO THIS SERVICE. VSR RESERVES THE RIGHT TO ADJUST THE LEVEL OF CHARGES ASSOCIATED WITH THE PROVISION OF E911 SERVICES TO REFLECT INCREASES OR DECREASES IN THE COSTS IT INCURS. (SEE SECTION 20 REGARDING CHANGES TO THE AGREEMENT, SERVICES OR SERVICE PLAN).
7.7. E911 CHARACTERISTICS. CUSTOMER ALSO ACKNOWLEDGES THAT VSR E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE VSR E911 SERVICES UNSUITABLE FOR SOME CUSTOMERS. BECAUSE CUSTOMER CIRCUMSTANCES VARY WIDELY, CUSTOMER SHOULD CAREFULLY EVALUATE CUSTOMER’S OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY SOLELY UPON VSR E911 SERVICE. CUSTOMER ACKNOWLEDGES THAT IT IS CUSTOMER’S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET CUSTOMER’S EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH VSR E911 SERVICE FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE:
** VSR E911 SERVICE WILL NOT FUNCTION IF CUSTOMER’S ATA, PHONE OR VIDEOPHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF CUSTOMER’S VSR SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND SERVICE OUTAGE, REMOVAL OR NOT INSTALLED PHYSICAL TELEPHONES OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE, CUSTOMER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE VSR SERVICE, INCLUDING FOR E911 PURPOSES.
** AFTER INITIAL ACTIVATION OF THE E911 SERVICE AND FOLLOWING ANY CHANGE OF AND UPDATE TO CUSTOMER’S PHYSICAL LOCATION, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY POPULATED INTO VSR’s NOMADIC E911 DATABASES PRIOR TO SERVICE ACTIVATION, BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE.
** THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING VSR E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE VSR E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE VSR NETWORK, THERE IS A POSSIBILITY THAT A VSR 911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL, LEGACY, CIRCUIT-SWITCHED TELEPHONE NETWORKS.
** IF CUSTOMER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE VSR EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, VSR E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.
7.8. E911 LIMITATION OF LIABILITY AND INDEMNITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT VSR WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING VSR OR TO ACCESS AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS VSR, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
8. EQUIPMENT. To provide the Services, VSR may provide Equipment to Customer. All Equipment shipments are F.O.B. VSR’s facility. VSR’s liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to Customer upon delivery to carrier. Customer will be provided a twelve (12) month manufacturer’s warranty from the date of purchase of Equipment or Services. Customer shall be required to obtain authorization from VSR to return any Equipment. VSR will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty. VSR will not cover replacement for lost, stolen or modified equipment. Equipment returned by Customer that is not covered under warranty may be refused by VSR, and Customer will be responsible to pay return shipping charges. If Customer has executed a separate “Equipment Lease Agreement”, then the Terms and Conditions of that agreement will supersede this paragraph.
9. DATA PROTECTION.
9.1. Data Privacy
VSR respects Customer’s privacy and will only use the information provided by Customer to VSR or collected in the provision of the Services in accordance with: the VSR Data Processing Addendum available at https://www.vsrnt.com/legal/dpa.html which is hereby incorporated by reference. VSR may update the VSR Data Processing Addendum from time to time and will provide notice of any material updates to the Customer as required by applicable Laws at the email address on file with the Account. Such updates will be effective thirty (30) days after such notice to Customer.
9.2. Data Security
VSR will take commercially reasonable precautions, including, without limitation, technical (e.g., firewalls and data encryption), administrative and physical measures, to help safeguard Customer’s Account, Account Data, and Customer Content against unauthorized use, disclosure, or modification. Customer must protect all End Points using industry-standard security measures. Customer is solely responsible to keep all user identifications and passwords secure. Customer must monitor use of the Services for possible unlawful or fraudulent use. Customer must notify VSR immediately if Customer becomes aware or has reason to believe that the Services are being used fraudulently or without authorization by any End User or third party. Failure to notify VSR may result in the suspension or termination of the Services and additional charges to Customer resulting from such use. VSR will not be liable for any charges resulting from unauthorized use of Customer’s Account.
VSR may from time-to-time push software updates and patches directly to Customer’s device(s) for installation and Customer will not prevent VSR from doing so. Customer must implement promptly all fixes, updates, upgrades and replacements of software and third-party software that may be provided by VSR. VSR will not be liable for inoperability of the Services or any other Services failures due to failure of Customer to timely implement the required changes.
10. BILLING, CHARGES AND PAYMENT.
10.1. PAYMENT OF SERVICE FEES. Customer will pay the Service Fee for Services ordered by Customer, and all other amounts due under the Agreement, pursuant to the terms of this Section 10. If Customer has executed a separate “Equipment Lease Agreement”, payment for equipment and installation labor, if Customer explicitly requests installation labor to be included, will be collected at the same time Service Fee payment will occur.
10.2. CREDIT TERMS. Standard payment method is credit card, unless Customer requests alternative payment method and is approved by VSR. All Services provided to Customer and covered by the Agreement shall at all times be subject to credit approval or review by VSR. Customer will provide such credit information or assurance as is requested by VSR at any time. VSR, in its sole discretion and judgment, may discontinue credit at any time without notice or require a deposit.
10.3. BILLING. VSR may provide Customer with a monthly on-line billing statement for the Services provided each calendar month and bill all charges invoiced to Customer’s account. Such charges shall include activation fees, monthly service fees, shipping charges, disconnection fees, equipment charges, toll charges, taxes and any other applicable charges. Monthly Service Fees are paid in advance of each month’s service; toll charges and any other applicable charges are billed subsequent to the end of each month’s service. Billing for monthly Service Fees commences the day Services are activated and incoming and/or outgoing calls are being processed, whether the installation is complete at that point in time. The reoccurring billing date will be the 1st of each month unless VSR, in its sole discretion, chooses an alternate date. For customers having a billing date of the 1st of each month, but their service is activated after that date, service will be pro-rated and collected prior to next reoccurring monthly billing date
10.4. LATE/NON-PAYMENT. If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment, VSR may suspend or terminate the Services and all accrued charges shall be immediately due, plus a late fee of the greater of ten dollars ($10.00) or 1.5% per month. A fee will also be charged to activate a suspended account. No suspension or termination of the Services or of this Agreement shall relieve Customer from paying any amounts due hereunder.
10.5. FEES/SURCHARGES/TAXES. Prices for the Services do not include any customs duties, sales, use, value added, excise, federal, state, local, public utility, universal service or other similar taxes. All such taxes shall be paid by Customer and will be added to any amounts otherwise charged to Customer unless Customer provides VSR with an appropriate exemption certificate. If any amounts paid for the Services are refunded by VSR, applicable taxes may not be refundable.
10.6. REGULATORY RECOVERY FEE. A regulatory recovery fee will be charged monthly to offset costs incurred by VSR in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The regulatory recovery fee will apply to every phone number assigned, including toll free and virtual numbers.
10.7. DISCONNECTION AND OVERAGE FEES. If Customer terminates the Agreement, or some of the Services provided under the Agreement, before the end of the Initial Term or any Renewal Term (the “Terminated Term”), VSR will charge the Customer, and the Customer will pay, an early termination charge equal to 100% of the Monthly Service Fee for the terminated Service(s) multiplied by the number of months remaining in the Terminated Term on the date of termination. If the Terminated Term is the Initial Term, VSR will also charge the Customer, and the Customer will pay, any unpaid non-recurring charges waived at the beginning of the Initial Term. VSR reserves the right to charge overage fees when the Customer exceeds the usage limits on applicable services. All fees, including Service Fees, payable under the applicable Service Plan shall be non-refundable and non-creditable.
10.8. RATE CHANGES. VSR may change the prices for the Services and toll charges from time to time. VSR may change prices, Service Plans, taxes or fees without any advance notice. For Customers on Service Plans, rates will not be increased during the Initial Term, with the exception of tax or fee changes and international toll calling rates. International toll calling rates are updated monthly on the first of each month and no other notice shall be provided for changes to international toll calling rates. The Service Fees effective upon any renewal of the Agreement shall be VSR’s then-current Service Fees for the applicable Services.
10.9. AVAILABILITY. Customer acknowledges and agrees that the Services will not be available 100% of the time. Credit allowances for interruption of the Services shall not be provided.
10.10. DISCOUNTS. From time to time in its sole discretion, VSR may offer promotions or discounts of activation or other fees. Any promotion or discount codes must be provided to VSR upon purchase of the Services. Customer shall not be entitled to a subsequent credit for such promotions or discounts, if not requested at the time of account creation or change of service. Promotions and/or discounts may not be used cumulatively or be used for services retroactively.
10.11. BILLING DISPUTES. If a Customer reasonably and in good faith disputes any portion of VSR’s charges, it must provide written notice to VSR within thirty (30) days of the invoice date, identifying the reason for the dispute and the amount being disputed. Customer’s dispute as to any portion of the invoice will not excuse Customer’s obligation to timely pay the undisputed portion of the invoice. Upon resolution, Customer must pay any unpaid amounts within thirty (30) days. Any amounts that are found to be in error resulting in an overpayment by the Customer will be applied as a billing credit against future charges. Customer will be reimbursed any outstanding billing credits at the expiration or termination of this Agreement.
11. TOLL CHARGES. If Customer has not selected an Unlimited Service Calling plan, every call to or from Equipment using the Services that originates or terminates in the Public Switched Telephone Network (“PSTN”), including other VoIP networks, is subject to the then applicable toll charges that are associated with the Service Plan, which Customer will pay. Calls to a phone number outside the United States and Canada to a non-VSR telephone number will be charged at the current rates published. The duration of each call is to be calculated in one-minute increments and rounded up to the nearest one-minute increment for any fraction of minutes used. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. If the computed charges for taxes and surcharges include a fraction of a cent, the fraction is rounded up to the nearest whole cent. When Customer dials an international PSTN phone number, charges may apply regardless of whether the party on the other line answers the call. Calls made by a Customer to an international mobile, rather than landline, or premium rate telephone number, may result in higher toll charges.
12. TELEPHONE NUMBER. VSR will us all reasonable efforts to “Port In” Customers’ existing telephone number(s) from its current carrier to VSR. Customer is required to submit a recent copy, within thirty days, of their then current telephone bill and execute a Local Number Port (LNP) Letter of Authorization (LOA) with VSR. LNP’s can typically take up to four weeks to complete. Timelines are provided by the loosing carrier, not VSR. VSR has arrangements with the vast majority of rate centers throughout the US, but in the event a Customers number cannot be ported, Customer agrees to keep their telephone number with current carrier and call forward to a telephone number provided by VSR. Customer also agrees and understands they are solely responsible for any and all costs associated with call forwarding the calls to VSR.
13. MONITORING SERVICES USE. Customer agrees that VSR is entitled to monitor Customer’s use of Service, at VSR’s expense.
14. LOST, STOLEN, ALTERED OR BROKEN EQUIPMENT. Customer shall not modify the Equipment in any way without the express written permission of VSR. Customer is responsible for all lost, stolen or broken Equipment and may be required to purchase a replacement to continue to receive Services. Replacement charges will be based on the fair retail price of equipment, plus applicable shipping costs and taxes. Customer shall immediately notify VSR of any lost or stolen Equipment and shall cooperate with VSR in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At VSR’s sole option, failure to report lost or stolen equipment in a timely manner will cause Customer to be responsible for all Service Fees accrued until the time that VSR is informed of the loss or theft and VSR is entitled to terminate the Services and Agreement following Customer’s breach of this Section.
15. PROHIBITED USES. Any use of the Services or any other action that causes a disruption in the network integrity, or threatens or compromises the security of VSR, its vendors, or the Services whether directly or indirectly, is strictly prohibited and permits VSR to terminate the Services and the Agreement without prior notice at the sole discretion of VSR. Customer acknowledges that neither VSR nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. Customer will NOT use the Services in ways that violate applicable laws (including but not limited to laws prohibiting transmission of unsolicited fax advertisements or laws on obtaining third party consent for call recording), infringe the rights of others, or interfere with the users, Agents, services, or equipment of the network. Customer agrees, represents, and warrants that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or charge for the Services or the Equipment without the advance express written permission of VSR. VSR’s Service Plans for Customers that offer unlimited minutes of PSTN calls (“Unlimited PSTN Plans”) or unlimited faxing are for reasonable business use of Customer only. Such use shall not include certain activities including, but not limited to, any autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, telemarketing (including without limitation charitable or political solicitation or polling), call center operations, junk faxing, fax spamming, calling/faxing any person (through the use of distribution lists or otherwise) who has not given specific permission to be included in such a process or any other activity that would be inconsistent with reasonable business usage. Customer will not use the Services to send unsolicited commercial e-mail to recipients outside Customer’s organization. Customer shall not transmit through the Services any unlawful, harassing, defamatory, abusive, threatening, harmful, vulgar, obscene, indecent, or otherwise objectionable communications or material of any kind or nature. Customers further agree not to transmit any material that encourages conduct that could constitute a criminal offense, violate the intellectual property rights of others, give rise to civil liability or otherwise violate any applicable local, state, national or international statute, regulation, or other law. Any use found to be inconsistent with this restriction will result in termination of the Services. VSR reserves the right to immediately terminate or modify the Services of any Customer using Unlimited PSTN or fax Service Plan if VSR determines, in its sole discretion, that Customer is not using the Unlimited PSTN or fax Services Plan for Customer’s reasonable business use.
16. USE, STORAGE AND OTHER LIMITATIONS. VSR reserves the right to establish or modify general practices and limits concerning use of the Services and Software, including without limitation, the maximum number of days that content will be retained by the Service, the maximum disk space and/or bandwidth capacity that will be allotted on servers owned and/or operated by VSR on Customer’s behalf, if any. Where practical, VSR will provide the Customer with prior notice of such new or modified practices; provided however, that VSR shall have the absolute right to implement such new or modified practices without prior notice in its sole discretion and without liability or any kind.
17. ELECTRONIC RECORDING. Customer acknowledges and understands that there are federal and state statutes governing the electronic recording of telephone conversations and that VSR 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 and it is the Customer’s responsibility to determine if the electronic recordings are legal under applicable federal and state laws. VSR is not responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings or the use of its products by the Customer, whether legal or illegal, and Customer will indemnify and hold VSR harmless for any claims, damages, fines, or penalties arising out of Customer’s failure to adhere to applicable electronic recording laws.
18. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF CUSTOMER COMMUNICATIONS. Customer is solely responsible for maintaining the confidentiality of Customer’s Login, and will not to transfer Login, email address or password, or lend or otherwise transfer use of or access to the VSR Services, to any third party. Customer is solely responsible for any and all activities that occur under Customer’s account. Customer will comply with applicable foreign, federal, state, and local law in its use of the Services, including but not limited to laws regarding online behavior, acceptable content, and the transmission of equipment and information under applicable export laws. Recognizing the global nature of the Internet, Customer also agrees to comply with applicable local rules or codes of conduct (including, if applicable, codes of conduct or policies imposed by employers) regarding online behavior and acceptable content. Use of the Services is void where prohibited. Customer will immediately notify VSR of any unauthorized use of Customer’s account or any other breach of security related to Customer’s account or the VSR Services, and to ensure that Customer completes a “log off”/exit from Customer’s account (if applicable) at the end of each session. VSR is not liable for any loss or damage arising from Customer failure to comply with any of the foregoing obligations. In consideration for using the VSR
Services, Customer will: (1) provide certain current, complete, and accurate information about Customer when prompted to do so by the VSR Services, and (2) maintain and update this information as required to keep it current, complete and accurate. Customer warrants that any such information will be accurate. Customer agrees that Customer is solely responsible for the content of all visual, written or audible communications (“Content”) sent by Customer or displayed or uploaded by Customer in using the Services. Although VSR is not responsible for any such communications, VSR may delete any such communications of which VSR becomes aware, at any time without notice to Customer. Customer retains copyright and any other rights already held in content that Customer submits, posts or displays on or through, the Services. Customer understands and agrees that by displaying, exchanging or uploading Content to a VSR website, transmitting Content using the Services or otherwise providing Content to VSR, Customer automatically grant (and warrant and represent Customer has a right to grant) to VSR a world-wide, royalty- free, sub-licensable (so VSR affiliates, contractors, resellers and partners can deliver the Services) perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content in the course of offering the Services, including associates websites (“Sites”).
19. RESPONSIBILITY FOR CONTENT OF OTHERS. Customer acknowledges that Agents or other users of the Services (“Users”) may violate one or more of the above prohibitions, but VSR assumes no responsibility or liability for such violation. If Customer becomes aware of misuse of the Services by any person, please contact VSR Customer Support at +1 (530)889-1500. VSR may investigate any complaints and violations that come to its attention and may take any action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User or Agent profiles and/or Login. However, because situations and interpretations vary, VSR also reserves the right not to take any action. Under no circumstances will VSR be liable in any way for any data or other content available on a Site, viewed or actions taken while using the Services, including, but not limited to, any errors or omissions in any such data, content or activity or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data, content or activities incurred from the actions taken on a Site. VSR does not endorse and has no control over what Users or Agents post, submit to or do on a Site. Customer acknowledges that VSR cannot guarantee the accuracy of any information submitted by any Agent or User of a Site, nor any identity information about any Agent or User. VSR reserves the right, in its sole discretion, to reject, posting or other data, or to restrict, suspend, or terminate any User’s or Agent’s access to all or any part of Services or any Site at any time, for any or no reason, with or without prior notice, and without liability. VSR reserves the right to investigate and take appropriate action against anyone who, in VSR’s sole discretion, is suspected of violating this Agreement, including without limitation, reporting Customer or any User to law enforcement authorities.
20. CHANGES TO THE AGREEMENT, SERVICES OR SERVICE PLAN. VSR reserves the right to make changes to the terms and conditions of these Terms and Conditions and/or the Services (“Change of Service”). In the event of a Change of Service, VSR will post to the website currently located at http://www.vsrnt.com/PoliciesAndLegal.aspx/. Customer may request a Service Plan change at any time. The Service Plan change will take effect in the first month after the Service Plan is changed. For a Service Plan change to a plan that requires a purchase of the Equipment, an equipment charge will apply.
21. NOTICE. Notice will be considered received by Customers and such changes will become binding to Customers, on the date the changes are posted to http://www.vsrnt.com or other websites owned and managed by VSR (“Change Date”), and no additional notice will be required. If Customer does not send VSR notification of their desire to terminate the Agreement or uses the Services after the Change Date, Customer is deemed to have accepted and consented to the change of terms and conditions of the Service. If Customer does not consent to the change of service and terminates this agreement, Customer will be responsible for any sums due hereunder in addition to any applicable Disconnection Fee.
23. RETURNS AND ADJUSTMENTS. No Equipment may be returned by Customer for any reason without prior approval of VSR. All returns shall be in original packaging or equivalent. Customer shall be responsible for all costs related to shipping to VSR any Equipment that is being returned. Any Equipment returned to VSR without prior authorization for its return or proper packaging may be refused. In order to obtain an appropriate refund, upon cancellation Customer must immediately obtain a return material authorization number from VSR, return to VSR any Equipment provided hereunder, undamaged and in good working condition, in its original packaging and with its original content or otherwise will be immediately responsible for paying to VSR an amount equal to the fair retail price of the equipment minus any payments Customer had previously paid specifically for such Equipment.
24. TECHNICAL SUPPORT. VSR provides technical support to Customers via telephone and e-mail for the Services and the Equipment provided hereunder. Support for other applications and uses is not provided or implied and except as stated in this Section, VSR has no obligation to provide additional technical support.
25. BREACH. In the event of Customer’s breach of the terms of the Agreement, including without limitation, failure to pay any sum due hereunder, Customer shall reimburse VSR for all attorneys’ fees and court, collection and other costs incurred by VSR in the enforcement of VSR’s rights hereunder and VSR may keep any deposits or other payments made by Customer.
26.1. Indemnification Obligations
Customer agrees to indemnify and defend VSR and its Affiliates at Customer’s expense, from and against any and all third-party claims, arising out of or in connection with: i) material violation of applicable Law by the Customer or its End Users in connection with the use of the Services; ii) use of the Services in a manner not authorized by this Agreement; iii) failure to promptly install any updates of any software or firmware or accept or use modified or replacement items provided by or on behalf of VSR, or iv) claims relating to Customer Content. Further, Customer will indemnify and hold harmless VSR against all damages, costs, and legal fees finally awarded against VSR by a court of competent jurisdiction in connection with such third-party claim or agreed to in a written settlement agreement approved in writing by the Customer.
26.2 Defense and Indemnification Procedures
Any Party seeking defense or indemnification (the “Indemnified Party”) must provide the Party from which it seeks such indemnification or defense (the “Indemnifying Party”) with the following: (a) prompt written notice of the third-party claim, (b) sole control over the defense and settlement of the third-party claim, and (c) reasonable information, cooperation, and assistance in connection with the defense and settlement of the third-party claim. The Indemnified Party’s failure to comply with the foregoing obligations will not relieve the Indemnifying Party of its defense or indemnification obligations under this Section (Indemnification), except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party will have the right to participate at its own expense in the defense of such third-party claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Party’s express written consent (which such consent may not be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Party by each party bringing such third-party claim.
27.1 VSR Warranty
VSR will provide the Services using a commercially reasonable level of skill and care, in material compliance with all applicable Laws and otherwise subject to the terms of this Agreement. To the extent permitted by Law, VSR shall pass through to Customer any and all warranties VSR receives in connection with equipment provided to Customer.
27.2 Customer Warranty
Customer’s and its End Users’ use of the Services must at all times comply with all applicable Laws and this Agreement.
28. DISCLAIMER OF WARRANTIES
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND VSR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. TO THE EXTENT THAT VSR CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
29. EXCLUSIVE REMEDY. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WHICH VSR SHALL BE ENTITLED TO ELECT IS REPAIR, REPLACEMENT, CREDIT OR, REFUND. VSR MAY ELECT TO PROVIDE A REFUND IN LIEU OF CREDIT, REPLACEMENT OR REPAIR.
30. LIMITATIONS OF LIABILITY
30.1. Excluded Damages
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR (1) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, REPUTATIONAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND; (2) COSTS OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (3) LOSS OF USE, LOSS OR CORRUPTION OF DATA; OR (4) LOSS OF BUSINESS OPPORTUNITIES, PROFITS, GOODWILL, OR SAVINGS, WHETHER IN ANY OF THE FOREGOING, ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. NEITHER PARTY WILL BE LIABLE FOR ACTIONS REASONABLY TAKEN TO COMPLY WITH LAW.
30.2 Direct Damages
EXCEPT AS SET FORTH HEREIN, THE TOTAL CUMULATIVE LIABILITY OF THE PARTIES UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE PREVIOUS SIX (6) MONTHS. LIMITATIONS UNDER THIS SECTION 10(B) (DIRECT DAMAGES) WILL NOT APPLY TO: I) CUSTOMER PAYMENT OBLIGATIONS; II) EITHER PARTY’S LIABILITY FOR INFRINGEMENT OF THE OTHER PARTY’S IP RIGHTS; III) EITHER PARTY’S LIABILITY RESULTING FROM GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR CRIMINAL MISCONDUCT; OR IV) CUSTOMER’S LIABILITY RESULTING FROM USE OF THE SERVICES IN BREACH OF THE ACCEPTABLE USE POLICY OR EMERGENCY SERVICES POLICY. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED OR EXCLUDED PURSUANT TO APPLICABLE LAW.
The limitations of liability contained in this Section 30 (Limitation of Liability) will survive termination or expiration of this Agreement and apply in any and all circumstances (except as expressly set forth above), including without limitation in the event of any failure of the essential purpose of any limited warranty or available remedy provided herein.
31. EXPORT COMPLIANCE. Customer agrees to comply with U.S. export laws, and applicable export laws that apply in Customer’s location(s), concerning the transmission of technical data and other regulated materials via the Services.
32. PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE. Upon expiration, cancellation or termination of the Services, Customer shall relinquish and discontinue use of any Numbers, voice mail access numbers, Logins and/or web portals Sites assigned to Customer by VSR or its vendors.
33. SOFTWARE COPYRIGHT. The Software is protected by copyright law and international treaty provisions. The Software is subject to the terms and conditions in licenses of third parties, and VSR will use commercially reasonable efforts to pass through licenses for Software sublicensed to Customer in providing VSR’s Services. Customer has no right to inspect, possess, use, copy, or attempt to discover the source code (or any portion thereof) used to create any Software, except to the extent that Customer is expressly permitted to decompile the Software under applicable law and Customer notifies VSR of Customer’s intention to decompile the Software and Customer’s reason to do so.
34. SURVIVAL. The provisions of sections 2, 6.3, 7, 10, 22, 23, 25, 26, 28, 29, 30, 32, 34, 35, 36, 37, 38, 39, 40, 41, and 42 shall survive any expiration or termination of the Agreement.
35. NOTICES. Except where otherwise expressly stated in the Agreement, all notices or other communications must be in English and are deemed to have been fully given when made in writing and delivered in person, upon delivered email or five days after deposit with a reputable overnight courier service and addressed as follows: to VSR at VSR Network Technologies, LLC., Legal Dept., 11760 Atwood Rd, STE 4, Auburn, CA 95603 USA, with a copy to firstname.lastname@example.org, and to Customer at either the physical address or email address associated with the Customer Account. Customer acknowledges and agrees that all electronic notices have the full force and effect of paper notices. The addresses to which notices may be given by either Party may be changed upon written notice given to the other Party pursuant to this Section 35 (Notices) or by Customer in the Administrative Portal.
36. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL). Excluding either Party’s payment obligations under the Agreement, neither Party will be responsible or liable for any failure to perform or delay in performing to the extent resulting from a Force Majeure Event. The suspension of obligations under this Section 36 (Force Majeure) may under no circumstances be a cause of liability for failure to perform the obligation in question, nor induce the payment of damages or penalties for late payment.
37. ENTIRE AGREEMENT. The terms and conditions of the Agreement constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services. The terms and conditions of the Agreement are in lieu of and replace any and all terms and conditions set forth in any documents issued by Customer, including, without limitation, purchase orders and specifications. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY CUSTOMER AT ANY TIME ARE HEREBY OBJECTED TO BY VSR, AND ANY SUCH DOCUMENTS SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE OR SERVICE RENDERED HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON VSR. Except as set forth in Section 20, no waiver or amendment to this contract or these terms and conditions shall be binding on VSR unless made in writing expressly stating that it is such a waiver or amendment and signed by an Officer of VSR.
38. GOVERNING LAW. The Agreement and the relationship between Customer and VSR shall be governed by the laws of the State of California without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.
39. NO WAIVER. The failure of VSR to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
40. SEVERABILITY. The unenforceability of any provision or provisions of the Agreement shall not render unenforceable or impair its remainder. If any provision of the Agreement is deemed invalid or unenforceable in whole or in part, the Agreement shall be deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the parties.
41. ASSIGNMENT; BINDING EFFECT. Neither Party may assign the Agreement or any portion thereof without the other Party’s prior written consent (which such consent may not be unreasonably withheld or delayed), however either Party may assign the Agreement and all of that Party’s rights and obligations thereunder without consent (a) to an Affiliate; (b) to the Party’s successor or surviving entity in connection with a merger, acquisition, consolidation, sale of all or substantially all of its assets used in connection with the provision of Services under this Agreement; or (c) as part of the transfer or disposition of more than fifty percent (50%) of a Party’s voting control or assets. This Agreement will bind and inure to the benefit of the Parties, and their permitted assigns and successors.
42. HEADINGS, INTERPRETATION. The headings, section titles, and captions used in the Agreement are for convenience of reference only and will have no legal effect. All defined terms include related grammatical forms, and, whenever the context may require, the singular form of nouns and pronouns include the plural, and vice versa. The Parties agree that this Agreement will be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore should not be construed against a Party or Parties on the grounds that the Party or Parties drafted or was more responsible for drafting the provision(s).