MASTER SERVICE AGREEMENT
This Master Service Agreement (the "Agreement") shall govern the provision of any software, voice, security, internet, network, or professional services or related hardware, equipment or products (collectively, the "Services") by CommandLink, LLC ("CommandLink") and its subsidiaries, affiliates, members, directors, officers, employees, contractors, subcontractors, agents or assigns (collectively, along with CommandLink, referred to as "CommandLink Parties" herein) to the Customer identified above and any person or entity utilizing such Services or to which CommandLink Parties provide the Services (collectively, the "Customer"). Customer and CommandLink may be referred to herein individually as a "party" and collectively as "parties."
1. Services. All Services performed or provided by or on behalf of CommandLink Parties shall be subject to the terms and conditions of this Agreement. CommandLink and Customer shall execute order form(s) detailing the Services provided to Customer ("Order Form"). By this reference, this Agreement is attached to, incorporated into, and made a part of any Order Form. Any capitalized terms not defined herein shall have the meaning given to them in the Order Form. Except where a specific provision in an Order Form expressly provides that it is intended to take precedence over this Agreement, this Agreement shall control in the event a provision of an Order Form conflicts with a provision of this Agreement. Any use of the Services by Customer shall constitute acceptance of this Agreement and any related Order Form. Customer shall receive the Services without the right of resale or distribution, and in accordance with applicable law and the terms of this Agreement. Customer may not sell, resell, sublease, assign, license, or sublicense the Services or any component thereof or use or offer the same on a service-bureau or time-sharing basis. CommandLink Parties or its suppliers may, from time to time and without liability, interrupt Services for maintenance and other operational reasons, and Customer shall not receive any compensation for such interruptions. Such maintenance and operations interruptions are standard practice in the telecommunications industry and necessary for the continued proper operation of the Services. If technically feasible, including if applicable vendors or suppliers provide advance notice to CommandLink, CommandLink shall use commercially reasonable efforts to provide Customer prior notice of such interruptions. CommandLink reserves the sole and exclusive right at any time to determine, limit or revise its Service area or to discontinue any Service or product without liability. Prior to mutual execution by the parties, CommandLink has the right to reject all or any portion of an Order Form in its sole discretion. Customer agrees that IP addresses are not guaranteed, transferable or provided for further distribution.
2. Services. CommandLink may provide one or more of the following Services based on the Customer's completion of an Order Form, and all Services provided by CommandLink Parties shall fall into one of the following categories, as determined by CommandLink in its sole discretion:
a. "Managed Services" - Includes network engineering and strategy consultation, custom integration development, managed wireless networks, managed IP phones, managed switches, managed IADs, managed WIFI, managed remote VPN, other managed devices, and/or similar or substitute Services.
b. "Network-as-a-Service" - Network and/or internet connectivity, including ethernet, fiber, broadband, wireless access, and/or T1/NxT1 using the "Bandwidth|Link" product or "MPLS/Link" product and/or similar or substitute Services.
c. "SDWAN" or "SASE" - Software-defined cloud networking services and similar Services using the "SDWAN|Link" or "SASE|Link" products and/or similar or substitute products.
d. "Security" - Managed network security services and similar Services using the "Security|Link" product and/or similar or substitute products.
e. "Software" - Use of the CommandLink I.T. Services Management ("ITSM") Software Platform product, a software-as-a-service platform, for cloud, Services inventory, Services monitoring and incident alerting, and productivity management and similar products and services, including the following products: "CommandLink|Base"; "CommandLink|Pro"; "ISP|Link Base"; "ISP|Link Pro"; "SNMP|Link"; "Command|Alert"; "Command|Automate"; "Command|Desk"; or "Command|API" and/or similar or substitute software products (collectively, the "CommandLink Platform").
f. "Voice Services" - Business-class voice over IP ("VoIP") services or similar services, including use of one or more of the following products: (i) "UCaaS|Link;" (ii) "SIP|Link;" (iv) Microsoft Teams voice service; and/or (iv) "CCaaS|Link," and/or similar or substitute products.
g. "Professional Services" - Includes services required for implementation, integration, configuring the CommandLink Platform, software development, development of custom software and/or API solutions, engineering and/or project management engagements on SD-WAN, security, and/or SASE services, recommending and conducting training of Customer personnel, providing training documents, making performance service recommendations, advising on hiring strategies, assessing current processes and operations, drafting operational playbooks/manuals for Customer use, engineering services, project management, and consulting.
3. Customer and CommandLink Equipment and Obligations.
a. Responsibility. CommandLink is not responsible for the compatibility, provisioning, configuration, maintenance, or management of, or internal equipment for, Customer's information technology infrastructure, including personal computers or other equipment, networks, electronic systems, hardware or software (collectively, "Customer Premises Equipment" or "CPE") or any other equipment that may be necessary to make such CPE compatible with the Services. Customer shall retain sole control over the operation, maintenance, access, use, management, and compatibility of CPE. Customer is solely responsible for ensuring that CPE complies with compatibility guidelines provided by CommandLink and shall maintain and repair CPE as necessary for CommandLink to provide the Services. Customer shall protect any equipment, device, hardware, product, or information technology infrastructure supplied by CommandLink Parties or their suppliers or vendors for the provision of the Services ("CommandLink Equipment") from power surges, including through connection to a surge protector. Customer also should consider connecting its CPE to surge protectors and providing backup power supplies as necessary for its locations and CPE. If Customer determines after Installation that such CPE is not compatible with the Services, Customer may:
i. Terminate this Agreement or a particular Service, in which case Customer will be liable for all applicable Termination Fees (defined below) that may apply; or
ii. Request that CommandLink provide equipment in lieu of CPE, in which case CommandLink will charge Customer CommandLink's then standard fee or price for such equipment and charge Customer for the field service technician fee(s) required to install or setup such equipment. After installation of such equipment by CommandLink, this equipment shall be treated as CPE.
b. Warranty Disclaimer. In addition to the warranty disclaimers elsewhere in this Agreement, CommandLink Parties explicitly disclaim any and all warranty or maintenance responsibility for CPE. Any warranty claims, maintenance, or repairs for CPE, or the cost thereof, will be the sole responsibility of Customer. However, if Customer had initially purchased such CPE through CommandLink, CommandLink will honor any remaining warranty pursuant to the terms of any applicable warranty agreement. CommandLink Parties are not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement, including failure of any Customer CPE.
c. Trouble Ticket for CPE. If CommandLink Parties dispatch a field service technician (a "Service Tech") in response to a complaint made by a Customer regarding any Service (a "Trouble Ticket") ultimately determined by CommandLink to be the result of CPE, CommandLink will charge Customer a CPE Dispatch Fee (defined below) for services performed by the Service Tech. For the avoidance of doubt, Customer will not receive any Service Credits (defined below) if CPE is determined by CommandLink to have contributed to the event for which Customer is requesting such Service Credit.
d. Authorized Account Users. Customer shall provide notice to CommandLink via the CommandLink Platform of any Customer personnel that are authorized to use, manage, edit or otherwise make changes to Customer's account ("Authorized Account User").
4. Third-Party Authorizations. Certain software necessary to utilize the Services, primarily for (a) unified communications desktop and mobile phone application tools and (b) security services desktop and mobile applications or clients, may require Customer to accept additional terms and conditions required by the third-party providers of such software. Customer shall have the opportunity to review these terms and conditions and shall comply with any such additional terms and conditions when utilizing these Services.
5. Access and Data. Customer shall be solely responsible for safeguarding any username, identification number, password, license or security key, security token, PIN, credentials or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Services or the CommandLink Platform ("Access Credentials") and may be unable to access its files in the event any Access Credential is lost, forgotten, misappropriated, or otherwise compromised. All Authorized Account Users and other users of the CommandLink Platform shall have their own multi-factor authentication-enabled accounts associated solely with their own identity with their own unique Access Credentials. Customer represents and warrants that all information provided regarding Authorized Account Users and other users of the CommandLink Platform is current, complete, and accurate to the best of Customer's knowledge. Customer, Authorized Account Users, and other users receiving Credentials for the CommandLink Platform as part of Customer's Services shall not transfer, share or borrow Credentials with or from other persons or users. Customer has and shall retain sole responsibility and liability for all Customer data and information, including data in any form or medium that is transmitted, collected, downloaded, or otherwise received directly or indirectly through the Services ("Customer Data"). Customer shall employ all physical, administrative, and technical controls, screening and security procedures and other safeguards necessary to securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services and control the content and use of Customer Data. Customer represents, warrants and covenants to CommandLink that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by CommandLink and used in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law and Customer agrees to indemnify, defend, and hold CommandLink Parties harmless from any claim, liability, cost, loss, or expense arising from any breach or violation of the foregoing representations, warranties and covenants. Customer shall provide CommandLink Parties and any other third parties access to any properties or facilities to the extent necessary to provide the Services.
6. Service Authorizations, Ownership and License. CommandLink Parties, as applicable, solely and exclusively own and retain all right, title, ownership, control and interest, including any intellectual property rights, in and to the Services, including their operation, maintenance, enhancement, derivatives, modifications, provision and management, and Customer hereby makes all assignments necessary to accomplish or perfect the foregoing ownership. Subject to the terms and conditions hereof, CommandLink grants to Customer a personal, non-transferable, non-exclusive, non-sublicensable license to use the Services during the term of this Agreement solely for Customer's own internal use of the Services for its own business purposes. As agreed by the parties, CommandLink will use commercially reasonable efforts to supply and configure the Services to Customer's CPE to allow Customer to use the Services as part of any Professional Services (see Section 8 below), unless Customer has chosen to supply its own CommandLink-qualified equipment for network and/or internet connectivity.
7. Used and Upgraded Equipment. For any equipment that Customer purchases through CommandLink, CommandLink may supply new or recertified equipment. From time to time and in CommandLink's sole discretion, CommandLink may provide equipment upgrades at no expense to Customer, and Customer agrees to promptly utilize and implement all such upgrades provided by CommandLink to ensure proper functioning of the Services. CommandLink shall have no obligation or liability in connection with any equipment, software, hardware, or documentation not purchased through CommandLink and configured by CommandLink, or for any abuse, misuse, reconfiguration (including the addition of software or other devices to CPE) of or other acts with respect to any equipment, software, hardware or documentation by any person or party other than CommandLink.
8. Setup and Installation; Disconnection and Cancellation; Professional Services.
a. Installation. For purposes of this Agreement, with respect to the following Services, "Installation" shall be deemed complete upon the occurrence of following:
i. For SD-WAN, SASE, or Security, if Customer installs or is responsible for install pursuant to Customer's Order Form, "Installation" is complete when phones and/or hardware or equipment are received by or delivered to Customer. For SD-WAN, SASE, or Security that CommandLink installs, "Installation" is complete when such hardware or equipment is physically installed by CommandLink, or two weeks after being delivered, whichever comes first, in CommandLink's sole discretion.
ii. For Voice, "Installation" is complete upon activation of the voice seats or physical installation of the equipment or two weeks after being delivered, whichever comes first, in CommandLink's sole discretion.
iii. For Internet/Network or Network-as-a-Service, "Installation" is complete upon physical installation or activation of the Service by the applicable vendor, which may occur at the applicable building's Main Point of Entry (MPOE), regardless of whether additional wiring is required inside the applicable building to extend to the Customer's suite or termination location, in CommandLink's sole discretion.
iv. For Software, "Installation" shall occur when Customer gains access to the CommandLink Platform or another CommandLink software product, or as otherwise defined in the Order Form or scope of work.
v. For other Services, "Installation" is complete as indicated in the Order Form or scope of work, or if not indicated therein, in CommandLink's sole discretion.
b. Unavailable Services. If CommandLink is unable to successfully install a Service that the Customer originally ordered, CommandLink will permit Customer to accept a lower speed Service, if available, or Customer may decline the Service without a Termination Fee. Customer will be responsible for any additional installation costs for any replacement Service, including inside wiring, DMARC extension, administration, or special costs or fees.
c. International Shipping. To the extent CommandLink Parties ship any device, hardware, or other equipment to any Location (defined below) or any other address outside of the United States, Customer understands that countries may prohibit the shipment or receipt of network security equipment or other hardware by or to those or other countries or such shipments may be subject to other delays or issues, which may delay or prevent such shipments or installation related thereto. CommandLink has available options for high availability designs with redundant hardware and cold spare hardware strategies which can help alleviate shipping times to these locations. Notwithstanding any other provisions in this Agreement, CommandLink Parties shall not be responsible for and Customer shall not be relieved from any of its covenants or duties under this Agreement as a result of delays or issues related to international shipments and installations related thereto. In the event CommandLink Parties are required to engage in international shipping for the provision of the Services, Customer agrees that it shall be fully responsible for and pay any import Taxes (defined below) and other fees or costs associated with such shipments, regardless of when such Taxes, fees or costs are expended or identified by CommandLink or other persons (such Taxes, fees and other costs related to international shipping may not be identified or billed until after delivery of the international shipment).
d. Disconnection and Cancellation. Requests for disconnection or cancellation of any Service with respect to a Location (defined below) shall only be valid and binding on CommandLink if (i) such request is sent to [email protected] and sent directly by an Authorized Account User, or (ii) such request is received by CommandLink via a disconnect or billing ticket opened by an Authorized Account User in the CommandLink Platform. Such disconnection requests shall include any related case number or reference and comply with the other terms and conditions of this Agreement and all other written instructions of CommandLink to Customer regarding such requests.
e. Professional Services. CommandLink shall provide Customer with Professional Services as mutually agreed upon in an executed scope of work or Order Form. Any scope of work or Order Form for such Professional Services shall describe the scope, fees, deliverables, nature of, and other relevant characteristics of any Professional Services being provided by CommandLink to Customer. The scope of work or Order Form shall set forth the fees for the Professional Services, and Customer shall pay CommandLink any such fees subject to the terms and conditions in Sections 10-14 and other relevant provisions of this Agreement. CommandLink shall not be obligated to perform any Professional Services until both parties have mutually agreed upon and executed a scope of work or Order Form with respect to such Professional Services. CommandLink and Customer agree to cooperate in good faith to achieve completion of the Professional Services in a timely manner. The Professional Services shall be performed in a timely and professional manner by CommandLink, consistent with generally-accepted industry standards; provided, however, Customer's sole and exclusive remedy for any breach of this warranty shall be, at CommandLink's sole option, re-performance of the Professional Services or termination of the applicable scope of work or Order Form and return of the portion of the fees paid to CommandLink by Customer for the nonconforming portion of the Professional Services. Customer agrees to provide, at no cost to CommandLink, timely and adequate assistance and other resources reasonably requested by CommandLink Parties to enable the performance of the Professional Services, and CommandLink shall not be liable for any deficiency in the performance of Professional Services to the extent such deficiency results from any acts or omissions of Customer, including Customer's failure to provide assistance and resources as required hereunder. Deliverables subject to the Professional Services shall be deemed accepted by Customer in accordance with the terms of the applicable scope of work or Order Form and any changes to the scope of the Professional Services must be mutually agreed to by the parties in writing.
f. Co-Management Access. If Customer opts to have co-management access to SDWAN|Link and or Security|Link Services, including the ability to change the configuration of such Services, Customer shall give prior notice to CommandLink of any changes to the configuration of such Services via a support case and shall be responsible for any vulnerabilities or other issues or liabilities caused by Customer's access or configuration. If Customer requests that CommandLink fix or otherwise alter or address any issue, change, or vulnerability resulting from such access, Customer shall be liable for engineer consultation or professional services fees as applicable pursuant to Section 23 (Service Fees) of this Agreement.
9. Monitoring. CommandLink and the underlying vendors or suppliers have no obligation to monitor the Services; provided, however, subject to CommandLink's confidentiality obligations set forth in Sections 19 and 27 herein, CommandLink may (a) for all Services, monitor for uptime, performance, and related metrics and (b) for SD-WAN or Security Services, monitor web and application traffic information as needed to manage the delivered Services. CommandLink may disclose information regarding Customer's use of the Services to third parties upon Customer's request or to comply with laws, regulations, or governmental or legal requests or orders or to protect CommandLink in response to Customer's breach of this Agreement.
10. Fees and Payments.
a. Customer shall pay for all Services that CommandLink Parties furnish to Customer at the applicable prices set forth in Customer's Order Form, which do not include Taxes, surcharges (including FCC-imposed Universal Service Fund surcharges on certain Services), equipment, installation, set up or shipping fees. Customer also shall pay and be responsible for all other Taxes, expenses, costs or fees set forth in the Customer's Order Form or otherwise incurred for provision of the Services. For instance, CommandLink may add line items to Customer's monthly invoice for specific applicable local, state and federal Taxes that CommandLink Parties collect and remit to governmental entities in connection with Customer's services. CommandLink Parties also incur certain other variable expenses as a result of local, state and federal regulation, including its payments to governmental entities and to underlying network service providers and its internal expenses and costs of compliance associated with Taxes and regulatory fees and programs. Because these expenses fluctuate, CommandLink charges Customers two, separate monthly surcharges to recover these costs rather than include them in base rates, as follows: (i) a "Regulatory Recovery Surcharge" or "RRS," calculated as a percentage of Customer's recurring (e.g., MRC) fees and any Termination Fees for the billing period, and (ii) an "Administrative Compliance Surcharge" or "ACS," calculated as a percentage of Customer's non-recurring (e.g., NRC) fees for the billing period. The RRS and ACS are not themselves taxes or fees required by the government; they are surcharges that CommandLink assesses and retains. CommandLink may alter the components of the RRS and ACS and increase the RRS and ACS in its sole discretion at any time. If the RRS and ACS were bundled into the base rates, those rates would need to be higher to accommodate potential variation of these expenses.
b. Upon completion of Installation as set forth in Section 8(a) of this Agreement, Customer shall be fully responsible for and pay all upfront, initial or one-time fees and all first monthly fees for Services for which Installation has occurred. Notwithstanding the foregoing or any other provision in this Agreement, Customer shall be fully responsible and liable for all costs, fees and other liabilities or obligations triggered, agreed to, or incurred by CommandLink Parties or other persons for the Services, including CommandLink and third-party provider or vendor cancellation fees, after Customer executes in writing or otherwise approves the design review document, other written approval for circuit orders, or other similar scope of work or approval document for the project or Services, including hardware and equipment costs, licensing fees, and termination fees with network vendors, regardless of whether Installation or other work related to the Services or Products has been completed. CommandLink's first invoice to Customer shall include all monthly recurring charges ("MRC") for the Services (which shall be prorated for a mid-month commencement of Services), plus all non-recurring charges ("NRC") and all applicable excise, sales, use, or other taxes, fees, surcharges, and charges (collectively, "Taxes") as well as any applicable fees associated with mid-month Installation, setup, equipment, sales Tax or shipping, if any. Thereafter, CommandLink shall invoice the MRC to Customer once per month. CommandLink will bill Customer in advance for MRC on the first day of the month in which CommandLink provides Services. By way of example, CommandLink's July 1st invoice will charge Customer for Services to be received from July 1st through July 31st. However, usage-based charges for items such as Wireless/LTE usage, long distance or tollfree costs or Software (i.e., seat licenses) will be invoiced in the billing period after such Services have been provided.
c. Notwithstanding any other provisions in this Agreement, Customer shall timely pay and be responsible, or immediately reimburse CommandLink, if applicable, for any and all Taxes or other costs or fees resulting from any activation or use of LTE or 3G/4G/5G wireless connectivity or related or successor Services, including for 4G/LTE/5G backup, 4G/LTE/5G supplied by CommandLink, 4G/LTE/5G supplied by Customer, and other usage based BandwidthLink Internet products. Such Taxes, costs or fees may include those related to or arising from overages or use of such Services beyond specified, typical or contractual limits. Customer agrees that such Services may be subject to significant overage cost risk and fees for such Services may be up to thirty dollars ($30.00) per gigabyte. Customer shall be solely liable and responsible for the foregoing overage cost risk and any Taxes or other costs or fees and risks related to these Services.
d. All prices, costs, fees, expenses and other amounts on any Order Form, invoice or other bill shall be expressed in U.S. dollars ("USD"). Costs and fees for Services procured in a currency other than USD shall be converted to USD based on the then-applicable daily exchange rate for that currency versus the USD as indicated on the Order Form ("Applicable Exchange Rate"). If the Applicable Exchange Rate varies by more than five percent (5%) from the current daily exchange rate at any time, the Applicable Exchange Rate shall be adjusted to reflect the then-current daily exchange rate and applied to applicable costs and fees on the following invoices. This new Applicable Exchange Rate shall be compared to the daily exchange rate to calculate future revisions to the Applicable Exchange Rate, i.e., when there is equal to or greater than a five percent (5%) variation.
11. Payment Terms and Delinquent Payments. Invoices are due upon receipt. If invoices are not paid within five (5) days from the date of the invoice, they shall be considered late. After such five (5) day period, all unpaid costs and fees will accrue interest at a rate of one and one-half percent (1.5%) per month, compounded monthly, or the highest rate allowed by applicable law. Customer shall be liable to CommandLink and promptly reimburse CommandLink for all costs and expenses incurred by CommandLink (including reasonable attorney's fees and court costs) that CommandLink may incur collecting or attempting to collect late fees or costs. CommandLink reserves the right to charge Customer's credit card on file to satisfy costs and fees owed by Customer, including if Customer's check payment is cancelled, fails to process, or if Customer's account remains past due. For all payments or charges made by credit card, Customer shall pay CommandLink an additional three percent (3%) fee, or if that fee is not permitted by applicable law, then the maximum credit card fee permitted by applicable law. CommandLink also reserves the right to take any actions it deems necessary in its sole discretion upon failure by Customer to make timely payments, including suspending Services, requiring upfront deposits, ceasing acceptance of new orders, or immediately terminating this Agreement or suspending or terminating Services for "cause." CommandLink reserves the right, in its sole discretion, to require Customer to post appropriate advance deposits for new and existing Services. Unless otherwise required by law, deposits may be mixed with other funds and will not earn interest. If Customer breaches this Agreement is terminated or a Service is cancelled, CommandLink may, without notice to Customer, apply any deposit towards payment of charges due.
12. Regulatory Costs and Rate Increases. CommandLink may increase the MRC or its other rates and fees at any time and Customer shall be obligated to pay such increases, as follows: (a) as part of an increase in the RRS or ACS as set forth in Section 10(a), (b) in response to any increase in amounts, costs, rates or fees charged by CommandLink Party's providers, suppliers or vendors for the Services, or (c) upon expiration of the applicable Service Term for an individual Service. If CommandLink increases the MRC or other rates or fees for any reason other than as set forth in the preceding sentence, Customer may terminate only the Services affected by such MRC or other rate or fee increase without penalty within thirty (30) days of the date of notice of such increases. Any continued use of the Services by Customer thirty (30) days after the date of notice of such increases shall be deemed acceptance of any new costs, prices, or fees.
13. Billing Dispute. Within thirty (30) calendar days following the date of any disputed invoice, Customer must submit all bona fide disputes in writing along with all supporting documentation to [email protected] or open a billing ticket in the CommandLink Platform. Notwithstanding the foregoing, regardless of whether Customer has submitted a bona fide dispute, Customer shall, by the due date of the disputed invoice, pay to CommandLink all invoiced amounts due by the due date or they will be considered late and subject to any late charges set forth in this Agreement. An amount will not be considered in dispute until Customer has submitted a written bona fide dispute in the manner described herein, and the parties will promptly address and attempt to resolve any such dispute. CommandLink, in its discretion, may request additional supporting documentation or reject Customer's dispute. If CommandLink rejects such dispute, CommandLink will so notify Customer. If CommandLink determines that the Customer is entitled to Service Credits, CommandLink will credit Customer's invoice for such amount on the next appropriate billing cycle as set forth herein below. Any amounts or invoices not disputed by Customer pursuant to this Section 13 shall be considered final and binding on Customer.
14. Taxes. Customer shall be responsible for and shall pay all applicable federal, state and local Taxes or other similar exactions imposed on or with respect to the Services, whether such Taxes are imposed directly upon Customer or upon CommandLink Parties. For purposes of this section and for the avoidance of doubt, Taxes do not include any taxes that are imposed on or measured by the net income of CommandLink.
15. Term and Termination.
a. The term of this Agreement shall commence on the date last executed by the parties and continue in effect until the expiration or termination of all Order Forms entered into under this Agreement and deactivation of all Services thereunder, or earlier if terminated by the parties pursuant to this Agreement. The term of the Services for each physical location identified on an Order Form where Services will be installed (a "Location") shall commence upon completion of Installation of each individual Service at such Location as set forth in Section 8(a) of this Agreement (the "Effective Date"). The term for Services will run from the Effective Date for each Location for the minimum term set forth in an Order Form (the "Service Term"), which Service Term is measured from the Effective Date for each Location. Unless otherwise provided, each individual Service Term for a Location shall be as set forth in the Order Form and if no term is specified, a term of thirty-six (36) months shall be assumed. Notwithstanding the foregoing, for the renewal of existing Services that are already installed, unless specified otherwise in the applicable Order Form, the Effective Date for the renewed Service shall be the day after the expiration of the expiring Service Term. Unless Customer request disconnection or cancellation of a Service by providing CommandLink prior written notice at least thirty (30) days, but no more than one-hundred and eighty (180) days, prior to the end of the applicable Service Term as set forth in Section 8(d) (Disconnection and Cancellation), the Services and obligation to pay for such Services will continue and this Agreement and the applicable Order Form will be automatically renewed and continue after the end of the Service Term for another full Service Term equal in length to the original Service Term.
b. Either party may terminate an Order Form or a particular Services for convenience at any time by providing at least thirty (30) days written notice, but in no case more than one-hundred and eighty (180) days, prior to such termination; provided, however, if Customer cancels, terminates or downgrades a particular Service or Order Form prior to the end of its Service Term, or the Agreement, Order Form or Services are terminated, cancelled or suspended by CommandLink for cause or for a violation of this Agreement or an Order Form by Customer, termination fees shall apply as set forth in Section 16 of this Agreement (collectively "Termination Fees"). CommandLink may terminate the Agreement, an Order Form, or suspend or cancel any Services for cause, if Customer violates the terms and conditions of this Agreement and does not cure such breach within twenty (20) days of written notice from CommandLink thereof, or at any time and through any means without giving prior notice to Customer if Customer fails to meet its payment obligations under this Agreement, Customer declares bankruptcy or indicates it is unable to pay for the Services hereunder, or CommandLink is required to do so by law or governmental order or request. Upon suspension, cancellation or termination of any Service or this Agreement or an applicable Order Form, Customer's rights to use the Services and any rights, licenses, consents, and authorizations granted hereunder immediately cease and terminate. Upon termination of this Agreement, an applicable Order Form or suspension or cancellation of delivery of the Services to Customer for any reason, Customer agrees to return any CommandLink Equipment to CommandLink in its original condition (excepting normal wear and tear) within five (5) business days of such termination, suspension, or cancellation. If Customer fails to return the CommandLink Equipment within thirty (30) calendar days of such termination, suspension, or cancellation, or refuses CommandLink Parties access to CommandLink Equipment, then CommandLink shall have the right to add the full retail replacement cost for the CommandLink Equipment to Customer's next invoice and Customer shall be immediately liable for the same.
16. Termination Fees. Upon disconnection, cancellation, termination or downgrade of any Service, applicable Order Form, or this Agreement prior to the end of any applicable Service Term, Customer shall pay CommandLink a Termination Fee for each Location in an amount equal to (a) the MRC (Monthly Recurring Charge) set forth on the Order Form multiplied by the number of months remaining in the Service Term, plus (b) any Taxes, surcharges, RSS (including RSS due on the Termination Fee), or fees, plus (c) repayment of any NRCs set forth on the Order Form for the applicable Location that was originally waived or rebated, including costs or expenses for routers, managed routers, firewalls, other managed network devices, circuit-related and/or build costs either charged or waived by CommandLink Parties or its providers or vendors, and data circuits. Customer may upgrade to a higher grade of Service without an upgrade charge; provider, however, Customer will be responsible for any additional Service, installation and/or equipment charges that are necessary to complete the upgrade. Customer may downgrade a Service without a Termination Fee provided that the applicable Service Term has expired, and Customer pays any additional Service, installation and equipment charges applicable or necessary to complete the downgrade request.
17. Disclaimers. COMMANDLINK PARTIES DO NOT WARRANT OR GUARANTEE THAT THE SERVICES CAN BE PROVISIONED TO EACH CUSTOMER'S LOCATION, OR THAT PROVISIONING OF SUCH SERVICES WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF COMMANDLINK PARTIES HAVE ACCEPTED CUSTOMER'S ORDER FORM FOR THE SERVICES. THE PROVISIONING OF THE SERVICES IS SUBJECT TO NETWORK AVAILABILITY, CIRCUIT AVAILABILITY, LOOP LENGTH, THE CONDITION OF CUSTOMER'S TELEPHONE LINE AND WIRING INSIDE CUSTOMER'S LOCATION, AVAILABILITY OF FACILITIES WITH NETWORK VENDORS, AND CUSTOMER'S COMPUTER/DEVICE CONFIGURATION AND CAPABILITIES, AMONG OTHER FACTORS. EXCEPT AS MAY BE PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" AND "WHERE IS" BASIS WITH ALL FAULTS AND CUSTOMER'S USE THEREOF IS AT CUSTOMER'S SOLE RISK. EXCEPT AS EXPLICITLY SET FORTH HEREIN, COMMANDLINK PARTIES DO NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS MAY BE PROVIDED HEREIN, COMMANDLINK PARTIES DO NOT WARRANT THAT THE SERVICES WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, SECURE OR FREE OF VIRUSES, WORMS, DISABLING CODE OR CONDITIONS, OR THE LIKE.
18. Limitation on Liability. UNDER NO CIRCUMSTANCES SHALL ANY COMMANDLINK PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INDIRECT OR SPECIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING FOR ANY LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS OF POTENTIAL BUSINESS, WORK STOPPAGE, LOSS OF DATA OR SERVICES, LOSS OF GOODWILL, REGARDLESS OF WHETHER SUCH LOSSES ARE FORESEEABLE. IN NO EVENT SHALL ANY COMMANDLINK PARTY'S CUMULATIVE LIABILITY UNDER THIS AGREEMENT OR WITH RESPECT TO THE SERVICES, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE FEES PAID BY CUSTOMER TO COMMANDLINK FOR THE SERVICES DURING THE THREE (3) MONTH PERIOD PRECEDING THE DATE SUCH CLAIM FIRST AROSE EVEN IF A CUSTOMER IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, COMMANDLINK PARTIES SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES, LIABILITIES, OBLIGATIONS, LOSSES, EXPENSES OR COSTS SUFFERED AS A RESULT OF: (a) ANY INTERRUPTION OR FAILURE OF THE SERVICES; (b) THE DOWNLOADING OR USE OF ANY INFORMATION, DATA OR MATERIALS OBTAINED VIA THE SERVICES OR FROM THE INTERNET; (c) ANY FAILURE TO COMPLETE A TRANSACTION ON THE INTERNET OR USING THE SERVICES OR ANY LOSS OF DATA DUE TO DELAYS, NON-DELIVERIES, MIS-DELIVERIES, OR SERVICE INTERRUPTIONS; (d) ANYTHING BEYOND THE REASONABLE CONTROL OF COMMANDLINK, INCLUDING ANY INTERRUPTION OR FAILURE OF A THIRD PARTY'S SERVICES, SOFTWARE, EQUIPMENT, OR NETWORKS; (e) ANY UNAUTHORIZED OR ILLEGAL USE OR MODIFICATION OF SERVICES OR COMBINATION OF SERVICES WITH OTHER HARDWARE, SOFTWARE OR EQUIPMENT; (f) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE OR DISADVANTAGOUS DATA OR SOFTWARE; (g) UNAUTHORIZED USERS (E.G., HACKERS) OBTAINING OR ATTEMPTING TO OBTAIN ACCESS TO CUSTOMER'S DATA, WEBSITE, COMPUTERS, OR NETWORKS; OR (h) CUSTOMER DATA (AS DEFINED BELOW). CUSTOMER AGREES THAT REGARDLESS OF ANY STATUTE OF LIMITATION TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION OF CUSTOMER ARISING OUT OF OR RELATED TO THE USE OF THE SERVICES OR THIS AGREEMENT MUST BE FILED WITHIN SIX (6) MONTHS AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. CUSTOMER ACKNOWLEDGES THAT COMMANDLINK HAS ENTERED INTO THIS AGREEMENT AND HAS SET ITS PRICES AND TERMS IN PART IN RELIANCE ON THESE LIABILITY AND REMEDY LIMITS, AND THAT THEY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR THE FAILURE OR NON-PERFORMANCE OF THE SERVICE TO MEET THE SERVICE LEVEL AGREEMENTS SHALL BE TO RECEIVE A CORRESPONDING SERVICE CREDIT.
19. Confidentiality; Reservation of Rights. Customer acknowledges that the Services contain or include proprietary and confidential information of CommandLink Parties and their vendors and suppliers. Customer agrees to not disclose this Agreement, the Services, or information regarding the same, to third parties without the prior written consent of CommandLink. The Services shall not be reengineered, reverse engineered, decomposed, or disassembled, and Customer shall not create or recreate the source code for the Services. Customer shall not remove, erase, tamper with or fail to preserve any copyright, trademark, or other proprietary notice printed or stamped on, affixed to, or recorded on or in the Services. The Services provided to or made available to Customer or on CommandLink's website or network are protected by copyright, trademark, patent and other intellectual property laws and international treaties. All websites, service marks, corporate names, trademarks, trade names, logos, domain names and similar information and intellectual property of CommandLink Parties or its vendors or suppliers are and shall remain the sole property of CommandLink Parties or its vendors or suppliers and nothing in this Agreement shall grant Customer any right, title, interest or license to it or to the same.
20. Choice of Law; Waiver of Trial by Jury; Venue. This Agreement shall be deemed to have been made in and shall be construed and governed by the laws of the State of Washington and the United States of America without regard to conflict of law principles thereof and the exclusive venue for any dispute, action, claim or proceeding arising under or related to this Agreement or the Services shall be in the state and federal courts located in King County, Washington. The parties unconditionally and irrevocably consent to the jurisdiction of any such court in any suit, action, claim or proceeding, agree to bring such actions only in such courts, and waive to the fullest extent permitted by applicable law any objection that it may have, including inconvenience of forum, to the laying of venue in such courts. CUSTOMER AND COMMANDLINK AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY AND TO WAVIE THE RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT WITH RESPECT TO ANY DISPUTE BETWEEN THE PARTIES OR ARISING UNDER THIS AGREEMENT OR WITH RESPECT TO THE SERVICES.
21. Force Majeure. Except for payment by Customer of any amounts due under this Agreement for provision of the Services, neither party shall be responsible for any failure to perform due to unforeseen circumstances or to causes beyond such party's reasonable control, including, acts of god, changes in governmental laws, rules, regulations or orders, war, terrorist acts, insurrection, disease, riot, embargoes, acts of civil or military authorities, geopolitical events, shipping or import delays, fire, floods, accidents, strikes, power outages or shortages in transportation, facilities, fuel, energy, labor or materials (collectively, a "Force Majeure Event").
22. Acceptable Use Requirements. The Services may only be used for acceptable uses, as determined by CommandLink in its sole discretion. The following uses are prohibited:
a. Illegal or Prohibited Uses. The Services may only be used for lawful purposes and may not be used for any illegal use or any use that may result in civil or criminal liability or negative publicity. Prohibited uses include effecting or participating in any of the following activities via the Services:
i. Storing, posting or transmitting unlawful materials, e-mail or information;
ii. Storing, posting or transmitting harassing, threatening or abusive materials, e-mail or information;
iii. Storing, posting or transmitting defamatory, libelous, slanderous or scandalous materials, e-mail or information;
iv. Storing, posting or transmitting, obscene, pornographic, profane or otherwise objectionable information of any kind;
v. Storing, posting or transmitting materials, email or information that would constitute an infringement upon the patents, copyrights, trademarks, trade secrets or other intellectual property right of others;
vi. Storing, posting or transmitting materials constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, including the U.S. export control laws and regulations;
vii. Storing, posting or transmitting materials that would give rise to liability under the Computer Fraud and Abuse Act;
viii. Storing, collecting, posting or transmitting credit card, debit card, electronic funds transfer numbers or other similar types of data for either a fraudulent or illegal purpose, or in a manner that would permit others to use such data for a fraudulent or illegal purpose;
ix. Collecting, without adequate security and a legitimate purpose, any of the following:
1. Information from users under the age of eighteen (18) without consent from such users' parents or legal guardians;
2. User's personal health information or personal financial information without informed consent from such user; or
3. Other personal information without advising the user;
x. Performing auto-dialing or "predictive dialing" in an abusive manner;
xi. Trunking or forwarding your CommandLink phone or fax number to other numbers that handle multiple simultaneous calls or to a private branch exchange (PBX) or a key system;
xii. Traffic pumping or access stimulation of calls through the Services;
xiii. Exploiting or harming minors (e.g., exposing them to inappropriate content; asking for personally identifiable information without parental consent, etc.);
xiv. Interfering, inhibiting, compromising, or otherwise harm the Services (regardless of intent or knowledge);
xv. Transmitting any material that contains viruses, time or logic bombs, Trojan horses, worms, malware, spyware, or any other programs that may be harmful or dangerous;
xvi. Acting in an indecent, offensive, threatening, harassing, defamatory, libelous, fraudulent, malicious, disruptive, tortious, or other objectionable manner;
xvii. Creating a false caller ID identity (i.e., ID spoofing), forge addresses or headers, or otherwise mislead others about a sender's identity or origin;
xviii. Using while driving or otherwise in an unsafe manner;
xix. Harvesting or collecting information about third parties without consent;
xx. Sending bulk communications or other content without the recipient's consent;
xxi. Using any device, system, network, account, plan, or the Services in an unauthorized manner or in excess of reasonable business use.
xxii. Taking advantage of, bypassing, exploiting, defeating, disabling, or otherwise circumventing limitations of the Services, security mechanisms, or compliance with this Agreement or any law.
xxiii. Intercepting, capturing, sniffing, monitoring, modifying, emulating, decrypting, or redirecting any communication or data for any purpose.
xxiv. Posting five (5) or more messages similar in content to usenet or other newsgroups, listservs, forums, e-mail mailing lists or other groups or lists;
xxv. Posting to any usenet or other newsgroups, listservs, forums, e-mailing lists or other similar groups or lists articles which are off-topic according to the charter of other owner-published FAQ's, rules, or policies or description of the group lists;
xxvi. Sending unsolicited e-mailings (including commercial advertising and information announcements) to more than five (5) e-mail addresses within a forty-eight (48) hour period, if such unsolicited e-mailings could reasonably be expected to or do in fact provoke complaints;
xxvii. Falsifying user information provided by CommandLink Parties or other users of the Services;
xxviii. Engaging in any of the foregoing activities by using the services of another provider, but channeling such activities through an account provided by CommandLink, re-mailer, or otherwise through the Services or using an account provided by CommandLink as a mail drop for responses or otherwise using the services of another provider for the purpose of facilitating the foregoing activities if such use of another party's service could reasonably be expected to adversely affect CommandLink or its suppliers; or
xxix. Operating a server in connection with the Services in an open relay configuration (a configuration whereby a mail server processes email messages where neither the sender nor the recipient is a local user). Servers configured in this manner expose both CommandLink's network and other users of the network personal account to fraudulent and abusive use by third parties. Customer hereby acknowledges and agrees that it will not operate servers within an open relay configuration. If Customer requires assistance in determining the configuration of the Customer's server and/or instructions to secure a server, Customer may contact CommandLink.
b. Interfering With Other Users. No Customer shall interfere with any other person's use of the Services or the Internet, including by effecting or participating in any of the following activities via the Services:
i. Restricting or inhibiting any other user or any other person from using or enjoying the Services and/or the Internet;
ii. Posting or transmitting any information or software that contains a virus, worm, cancelbot or other harmful component;
iii. Without permission from the owner of a system or network, doing any of the following:
1. accessing the system or network;
2. monitoring data or traffic;
3. probing, scanning, or testing firewalls;
4. testing the vulnerability of a system or network; or
5. breaching the security or authentication routines or a system or network;
iv. Conducting or forwarding surveys, contests, pyramid schemes, charity requests or chain letters;
v. Relaying e-mail in an anonymous fashion or forging any transmission control protocol/internet protocol ("TCP-IP") packet header(s); or
vi. Mailbombing, flooding, overloading, attacking or otherwise interfering with a system or network.
c. High Risk Use Prohibited. THE SERVICES ARE NOT DESIGNED, MANUFACTURED, INTENDED, OR RECOMMENDED FOR USE FOR ANY HIGH-RISK OR FAIL-SAFE PURPOSE OR ACTIVITY OR IN ANY ENVIRONMENT WHERE FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY COULD RESULT IN SUBSTANTIAL LIABILITY OR DAMAGES, PHYSICAL HARM OR PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR PROPERTY OR ENVIRONMENTAL DAMAGE. CUSTOMER SHALL NOT USE THE SERVICES FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT.
d. Abuse and Threats. Any abuse, threats, harassment, profanity, or vulgarities, including sexual harassment, made to or directed at CommandLink Parties or their vendor's or supplier's personnel is grounds for termination of this Agreement or cancellation or suspension of any Services for cause.
e. Damage to Equipment. Any use or activity that results in the destruction, malfunction, harm, or loss of or damage to any equipment, hardware, or products provided to Customer as part of or related to the Services.
f. Voice Services. Voice Services, including the use of long-distance services, shall be limited to normal business usage in CommandLink's sole discretion. Unreasonable or excessive use of Voice Services, e.g., auto dialing, hot desking, etc. is prohibited.
g. Remedies. CommandLink may act immediately and without notice to suspend or terminate the Services or remove any Customer information or content from CommandLink's servers, in whole or in part if, in CommandLink's sole discretion, Customer's use of the Services or Customer's information or content violates these acceptable use requirements. Violation of the foregoing provisions may result in civil or criminal liability, and CommandLink may, in addition to any remedy that it may have at law or in equity or under this Agreement, immediately suspend or terminate permission for the Customer to use the Services without notice and charge Customer any applicable Termination Fee. In addition, CommandLink may investigate incidents that are contrary to this Agreement and provide requested information to third parties who have provided notice to CommandLink stating that they have been harmed by Customer's failure to abide by this Agreement.
23. Service Fees. The following is a summary of services fees that may apply to the Services. The following fees are subject to amendment at any time in CommandLink's sole and absolute discretion:
a. High Availability ("HA") In-Term Engineering Fee. For adding HA to any specific Location(s) while the SDWAN|Link, SASE|Link, or Security|Link products are within a service term, a $500.00 engineering fee will apply as this constitutes a redesign process, which is not included in the Service fees.
b. Change of Account Ownership Fee. $500.00 will be charged to Customer when requesting to assign its account to another entity pursuant to Section 30(h) (Assignment) of this Agreement.
c. Move Fee. For moving any Services from one Location to another Location, $500.00 shall be charged to Customer per type of Service as an NRC to cover costs of project management and design engineering. Professional installation, decommissioning field services, and other fees may also apply.
d. Dispatch Fee. When a CommandLink service technician (a "Service Tech") is dispatched in the United States to address a Trouble Ticket or any other issue not directly caused by CommandLink (a "Customer Issue"), Customer shall incur a minimum "Dispatch Fee" equal to $375.00 for the first two hours of labor expended by the Service Tech. Thereafter, $175.00 shall be charged for each whole or partial one (1) hour increment a Service Tech is addressing a Trouble Ticket or other Customer Issue in the United States. Pricing in other jurisdictions may be greater and is subject to local prices available in the applicable jurisdiction, which CommandLink can estimate upon written request. Notwithstanding the foregoing, in CommandLink's sole discretion, if any dispatch requires a customized scope of work or involves complex tasks, there may be additional charges.
e. Engineer Consultation or Professional Services Fee. Engineering consulting services or other Professional Services performed by CommandLink Parties that are outside normal service management and support for the Services set forth in Sections 2(a) through 2(f), including professional, engineering or consulting services for route switching, security, compliance, network design, redesign or rebuilding work, re-configuration work, training, etc., shall be subject to an "Engineering Consulting Fee" or "Professional Services Fee" at an hourly rate of a minimum of $300.00 and may be further subject to a customized scope of work or Order Form to be negotiated by CommandLink and Customer in writing. See Section 8(e) above for additional terms and conditions applicable to Professional Services.
f. Separate Account Billing. For Customers that request separate billing accounts or separate or individual invoices per account or location, CommandLink reserves the right to charge an additional $25.00 per separate invoice or account.
g. Inside Wiring Fee. Rates and costs for installation, moving, configuration, or other work related to indoor wiring necessary to accommodate the Services will be quoted separately and is the responsibility of Customer. A site review for purposes of evaluating existing indoor wiring shall be billed as a Dispatch Fee.
h. Missed Appointment/No Access Fee. $375.00 plus a minimum Dispatch Fee shall be charged if Customer does not keep a scheduled appointment for any reason (e.g., no one over the age of eighteen (18) is present at the applicable Location for a scheduled Service Tech visit) without providing CommandLink with at least forty-eight (48) hours advance written notice or a Service Tech is denied access to a network interface device.
i. Returned Check Fee. $50.00 will be charged for any payment being returned from Customer's financial institution.
j. Minimum Invoice Fee. $50.00 will be added to any invoice of less than $120.00.
k. Special Installation, Construction or Access Fees. To-be-determined "Special Installation, Construction or Access Fees" shall be charged for work required to accommodate special and/or nonstandard Service installations, construction or access and shall be determined on a case-by-case basis by CommandLink and Customer in a separate scope of work or Order Form.
24. Amendment or Modification of Agreement. Except for increases to rates and fees, which are subject to Section 12 of this Agreement, CommandLink may amend or modify this Agreement or any other agreement incorporated herein, including, without limitation, the SLA, from time to time without notice by posting a copy of the modified or amended Agreement or other agreement at https://www.commandlink.com/terms-of-service, and Customer shall be bound by and be responsible for compliance with the current version of this Agreement or other agreements.
25. Non-Solicitation. Each party agrees during the term of this Agreement and for a period of twelve (12) months thereafter, it will not solicit for hire the agents, contractors, or employees of the other, without the written consent of the other party. Employees or agents hired in response to general employment solicitations advertised in the usual and customary manner by either party shall be excluded from this provision.
26. Notices and Contacts. Notices to Customers may be sent to the email address or address listed on the Order Form or as otherwise provided by Customer in writing. Customer authorizes and consents to CommandLink Parties or its vendors, outside collection agencies, outside counsel or other parties acting on behalf of CommandLink to contact Customer by any means or methods, including electronic means such as the CommandLink Platform, regarding the Services, including in connection with any past due charges of fees for such Services. Customer authorizes CommandLink Parties to obtain any Customer credit information or proprietary network information necessary for provision of the Services and to establish a CommandLink account; Customer authorizes release of such information by any third parties to CommandLink. Customer agrees to provide accurate, current and complete contact information to CommandLink Parties and to promptly update Customer's contact information upon any change in such information. Customer represents and warrants that all information Customer has provided to CommandLink Parties in connection with the Service is true, accurate, current and complete. Notices to CommandLink must be sent to:
CommandLink, LLC PO Box 4085 Portsmouth, NH 03802
With a Copy to: [email protected] and Keating & Lyden, LLC 5377 Manhattan Circle, Suite 203 Boulder, CO 80303 27. Privacy and Security Policy. The following policies and procedures set forth in this Section 27 (the "Policy") have been adopted by CommandLink to address security of its Services and confidentiality of Customer Data transmitted thereon.
a. Purpose. The purpose of this Privacy and Security Policy is to set forth policies for the protection of any Customer Data that is transmitted over networks serviced by CommandLink. Protection of this Customer Data is of paramount importance to CommandLink. CommandLink shall take commercially reasonable precautions, including technical (e.g., firewalls and data encryption), administrative and physical measures, to help safeguard Customer Data in the possession of CommandLink against unauthorized use, disclosure, or modification. Customer shall protect all Services and Customer Data transmitted over networks subject to the Services using commercially reasonable security measures consistent with industry-standards, but in no case shall such measures be less protective than the measures used by Customer to protect its other Customer Data. Customer is solely responsible for keeping all user identifications, passwords, and other Access Credentials secure and confidential. Customer shall monitor use of the Services for possible unlawful or fraudulent use. Customer shall notify CommandLink immediately if Customer becomes aware or has reason to believe that the Services are being used in breach of this Agreement, fraudulently, or without authorization by any person, end user or third party. Failure to so notify CommandLink may result in the suspension or termination of the Services and additional charges to Customer resulting from such use.
b. Collection, Privacy and Use of Information. CommandLink collects, has or obtains data and information, including personal information and usage data, about customers and other users of its Services and uses such information to provide its Services. CommandLink may share such information as needed internally and with third parties to meet its business goals, to fulfill its legal or contractual obligations, or to comply with applicable law. CommandLink takes measures to protect the information it has regarding customers, and CommandLink requires those it shares such information with to protect it as well. CommandLink uses customer information generated on its networks to manage those networks, to plan for future development, and to keep its Services running reliably and efficiently. For example, CommandLink monitors data to check for viruses, to control spam, to prevent attacks that might disable its Services, to ensure that a customer's traffic does not violate a customer's Master Service Agreement or related agreements, and to guard against other inappropriate or illegal activity. This may involve reviewing the characteristics of network traffic, such as traffic volumes, beginning and ending points of transmissions, and the types of applications being used to send traffic across its network. In certain circumstances, CommandLink Parties may need to review the content of the data (such as the specific websites being visited, files being transmitted, or application being used) for the purposes described above, including in circumstances when CommandLink is concerned about fraud or harassment, to repair a problem CommandLink detects or that a customer contacts CommandLink about, or when CommandLink is required to provide the content of broadband traffic or the network to law enforcement or private parties via legal subpoenas. CommandLink may occasionally hire other companies to provide services on its behalf, including packaging, mailing and delivering purchases, answering customer questions about products or services, sending mail, or other services. CommandLink will only provide these companies referenced in the preceding sentence with the information they need to deliver those services, and CommandLink's contracts with such companies contain confidentiality protections. Other than what is described herein, CommandLink does not sell, trade or rent Customer personal information or Service-related data to others outside of CommandLink or their advertising and promotional agencies and consultants. When disclosing any personal information, Customers should remain mindful of the fact that it is potentially accessible to the public, and consequently, can be collected and used by others without the Customer's consent. CommandLink has no responsibility or liability for the security of Customer Data and or other information transmitted via the Internet.
28. Service Level Agreements.
a. Service Level Agreement. Customer agrees to abide by and be subject to CommandLink's Service Level Agreements ("SLAs") for the Services, which shall be incorporated herein and made part of this Agreement by reference. Based on the terms thereof, Customer may be eligible for specific reductions in future MRC owed by Customer ("Service Credits").
29. Voice Services Details.
a. Charges. Customer is responsible for paying all charges to Customer's account for the Voice Services, including long distance, international tolling and directory assistance charges, and any costs and charges arising from fraud, unauthorized or illegal use or activities, hacking or access of or by third parties, and for all Taxes imposed on Customer or CommandLink Parties as a result of Customer's use of the Voice Services. Long distance usage on each call is as otherwise stated by Customer's plan. Toll free 800/888/877 numbers are charged on the in-bound call only. Calls originating from Canada, Hawaii, Alaska, Puerto Rico, the U.S. Virgin Islands or other nearby island groups will have special, higher, per minute rates that will vary by each of these regions normal business usage.
b. Security. Customer understands that the use of the Voice Services requires passage through Customer's network firewall. This may introduce exploitable security weaknesses. Those Customers especially concerned about their security are advised to deploy firewalls specifically designed to enhance security for Voice Services. Customer shall defend, indemnify, and hold harmless CommandLink Parties from and against all liabilities, obligations, claims, demands, costs and expenses, including reasonable attorneys' and experts' fees, incurred, suffered or imposed upon CommandLink Parties that relate to or arise from such security weaknesses.
c. Fax Machine. If Customer's business requires the use of facsimile machine(s) (fax machines) Customer should be aware that both the data line and/or the fax machine itself may not be capable of delivering satisfactory fax operation for Voice Services. In addition, the fax machine may not work at all.
d. Account Changes. Customer may change Voice Service features or Voice Service plans by notifying CommandLink and paying CommandLink's standard charges, including any applicable early termination or cancellation fees, and by complying with any other requirements of CommandLink to accomplish the change. Changes will generally take effect by Customer's next billing cycle.
e. Ownership and Transfer of Telephone Number. In the event that Customer ported a telephone number, either local or toll-free, from a previous service provider or carrier to CommandLink, then Customer will retain ownership of that telephone number. Provided, however, Customer understands and agrees that Customer is not the owner of any telephone number assigned to Customer by CommandLink. Ownership of any such phone number is vested solely in CommandLink or others (who will assign or re-assign such numbers to Customer for its use during the term of this Agreement). Customer understands and agrees that: (a) CommandLink may from time to time need to change the number assigned to Customer (due to an area code split or for any other reason outside of CommandLink's control); and (b) following the termination of Customer's CommandLink account for any reason, Customer will no longer have access to such number. In either case, such phone number maybe re-assigned immediately to another person or entity and Customer agrees that CommandLink Parties will not be liable for damages (including consequential or special damages) arising out of any such re-assignment and Customer hereby waives any claims with respect to any such re-assignment, whether based on contract, tort or other grounds, even if CommandLink Parties have been advised of the possibility of damages. In the event that the telephone number assigned to Customer by CommandLink is a toll-free number and the Services associated with that number are being terminated, then CommandLink will, upon Customer's written request, allow Customer to move that toll-free number from CommandLink to an alternate toll-free carrier, provided that: (i) the termination of Service is not due to a default by Customer; and (ii) all fees and charges for the Services, whether or not then due, have been paid in full. In the event the Service associated with that telephone number is being terminated, CommandLink will, upon Customer's written request, allow Customer to move that local or toll-free number from CommandLink to an alternate carrier, only if: (x) the termination of the Service is not due to a default by Customer or for cause; and (y) all fees and charges for the Services, whether or not then due, have been paid in full by the Customer.
f. Disclaimer of Emergency 911 Services. CommandLink is subject to a Federal Communications Commission ("FCC") requirement to provide notification of any Enhanced 911 ("E911") limitations that may be associated with the Voice Services provided to Customer. As is the case with E911 service provided by a traditional telephone service provider, Customer is advised that the E911 service provided by CommandLink: (1) may not function with the loss of electrical power, including the loss of power to telephone equipment or other equipment necessary to route E911 calls to the appropriate emergency call center; (2) will not function if the broadband connection is not operational; (3) will not function at a remote location or may transmit incorrect physical location information for the caller if internal users are allowed to use their IP-based phones remotely; (4) will not function if the telephone equipment or other equipment necessary to place calls is not correctly configured; (5) may not transmit the correct physical address for the E911 call due to incorrect information provided by Customer, use of a non-native telephone number or delays in loading or updating automatic number identification and location information into the E911 databases; (6) may not be capable of being received and/or processed by an emergency call center due to the center's technical limitations; and (7) may be affected by other factors or Force Majeure Events, such as the quality of the broadband connection and network congestion. Customer's execution of the CommandLink Service Agreement or use of the Services will serve as Customer's acknowledgement that CommandLink has advised Customer of these potential E911 limitations. The physical location that Customer provided to CommandLink prior to the initiation of Service and at which our Service is first used by Customer, shall be the registered location that will be provided to the emergency call center when Customer place a 911 call. CUSTOMER HEREBY ACKNOWLEDGES THAT COMMANDLINK RECOMMENDS THAT A PLAIN OLD TELEPHONE SERVICE ("POTS") LINE BE AVAILABLE AS A BACK-UP FOR 911 CALLING IN EACH PHONE SYSTEM LOCATION. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ANY FEES, COSTS, LIABILTIES OR OTHER OBLIGATIONS ARISING FROM OR WITH RESPECT TO EFFORTS OR ACTIONS TAKEN BY COMMANDLINK, CUSTOMER, OR ANY THIRD PARTY TO COMPLY WITH THE RAY BAUM'S ACT OR SIMILAR LAWS RELATED TO E911 AND COMMANDLINK PARTIES SHALL NOT BE LIABILE FOR ANY LIABILITIES ARISING FROM OR RELATED TO THE FAILURE BY COMMANDLINK, CUSTOMER, OR ANY THIRD PARTY TO COMPLY WITH SUCH LAWS.
