Terms of Service
These Integrated Telemanagement Services, Inc. Terms of Service (the “TOS”) are incorporated into, and constitute an essential part of, the Service Agreement(s) between you (the “Client”) and Integrated Telemanagement Services, Inc. (“ITS”), a California corporation with its principal place of business located at 4100 Guardian St., Suite 110 Simi Valley, CA 93063. By signing the Master Service Agreement (“MSA”) or using the Service (as hereafter defined), Client consents to these TOS. As used in these TOS, the term “MSA” means each mutually agreed to Service Agreement (“SA”), Service Order Confirmation (“SOC”) and/or Technical Quote (“TQ”) and these terms are used interchangeably. Each of which describes the service(s) to be provided by ITS to Client pursuant to that Service Agreement (the “Service” or “Services”); the term “Effective Date” means the date of the first Service Agreement signed by Client; the term “Term” means the stated Service Term for a Service under any Service Agreement; and the term “Agreement” includes collectively these Terms of Service and each Service Agreement executed hereunder. ITS and Client shall individually be referred to as a “Party” and collectively as the “Parties”.
By enrolling in, activating, using, or paying for the Services, Client agrees to these TOS, including but not limited to the prices, charges, and terms and conditions provided to Client in the marketing and informational materials associated with the Services and on the ITS website, all of which are incorporated herein by reference. If Client does not agree to all of the aforementioned terms and conditions, Client should not use the Services, and should cancel the Services immediately by calling ITS at 1-800-876-4ITS (4487) for further directions.
Client agrees to pay all monthly recurring charges (“MRC”), installation charges, set-up charges, usage-based charges, one time charges, rental fees and other fees (collectively, “Service Fees”) for ITS services in the amount and at the rates that ITS has filed, if required, and may file from time-to-time, with the Public Utilities Commission (“PUC”). Changes to such prices, fees and rates made by ITS in accordance with the regulations and procedures of the PUC shall be effective when billed to Client, without any notice to Client other than as required by the PUC. In addition, Client will be charged for each call made at a price based on call duration and applicable mileage. All appropriate sales, excise and other taxes and surcharges required by law, state and federal regulations will also apply.
- 1.1 Service Activation Charges: ITS will bill Client for all estimated installation charges, set-up charges and the first full calendar month’s monthly service charges (the “Activation Charges”) as indicated on any Service Agreement upon ITS’s execution of such Service Agreement.
- 1.2 Monthly Invoices: ITS will begin to charge the monthly service charges on the date on which ITS completes delivery of the services or on the date on which Client first uses the service, if earlier. In the event the client delays the ability of ITS to provide the service(s), ITS shall begin charging for said service(s) on the date on which ITS was able to deliver the service(s). An invoice shall be deemed correct and payable in full unless disputed in writing by Client within thirty (30) days after receiving said monthly invoice. In case of a dispute, Client must pay the undisputed portion by the invoice’s due date to avoid a late payment fee on that amount. The due date for any disputed amount that is determined to be correct will be seven (7) days after ITS notifies Client that the dispute as to that amount has been resolved.
- 1.3 Taxes and Surcharges: Client shall pay, and ITS reserves the right to collect in arrears, all sales, use, excise or other taxes, fees or charges (including without limitation any and all federal or state Universal Service Fund charges) of any nature whatsoever, now or hereafter imposed or assessed on ITS, by any federal, state, county or local government authority upon or with respect to the Services provided. If Client claims exemption from charges, before utilizing services, Client must provide ITS with a current, valid exemption certificate from the applicable regulatory authority. In such cases Client remains responsible for, and agrees to pay, any and all remaining non-exempt charges; tax exemption status validation is solely the responsibility of the Client and ITS will not be obligated to consider or honor any retroactive tax exemption. ITS may, in its sole and absolute discretion, request advance payment, in whole or in part, from Client or change its payment terms at any time. ITS may cancel or re-schedule orders if ITS determines, in its sole and absolute discretion, that Client’s financial condition or previous payment record so warrants such change. All payments required by the Agreement are exclusive of applicable taxes and shipping charges. Invoices shall include all applicable federal, state and local taxes, assessments and regulatory charges of any kind. All such taxes, assessments and charges, including but not limited to all sales, use, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees, miscellaneous fees and surcharges, shall be payable by Client. If necessary or required by law, ITS will charge all applicable prospective and retroactive taxes required by the appropriate governmental agency. Notwithstanding the foregoing, in the event of any regulatory or governmental changes (“Regulatory Activity”), ITS reserves the right, at any time and without liability, to: (i) pass through to Client all, or a portion of, any changes or surcharges directly or indirectly related to such Regulatory Activity; (ii) modify the Service, rates (including any rate guarantees), promotions, terms and/or conditions of this Agreement in order to conform to such action; or (iii) if such Regulatory Activity materially and adversely impairs the provision of any or all Services under the Agreement, as reasonably determined by ITS, terminate the Agreement and/or any affected Service. Any contest of taxes does not eliminate or abate the obligation to pay such taxes. Any calculation errors in assessment and/or tax rate changes requiring adjusted tax computations by ITS as necessary (potentially to a retroactive tax basis period) to accurately and properly collect taxes does not relieve Client of its responsibility to pay fully and timely. In no case shall Client be responsible for any income taxes levied upon ITS’s (or any underlying provider’s) net income. Client agrees that its obligation to pay taxes and surcharges under this Section shall survive the expiration or early termination of the Agreement.
- 1.4 Regulatory Fees: ITS imposes a monthly regulatory cost recovery fee on invoices for Services to help offset costs associated with regulatory requirements and compliance. This fee is not a tax or government required charge. ITS reserves the right, at any time and without liability, to modify said regulatory cost recovery fee without providing prior written notice to Client. ITS is required by the Federal Communications Commission to contribute to the federal Universal Service Fund (“USF”). ITS assesses federal USF charges on invoices for its Services to recover the cost of its federal USF contributions. The charge for federal USF will reflect the applicable quarterly contribution factor, and ITS will not provide advance notice of any change in this quarterly contribution factor, except as required by law. This fee is not a tax or government required charge, and ITS reserves the right, at any time and without liability, to modify said USF fee without providing prior written notice to Client.
- 1.5 Toll Charges: 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 ITS will include in bills and Customer will pay.
- 1.6 Call Duration: The duration of calls will be billed based on the table below:
Service Description Direct Dial Timing Toll Free Timing VoIP Calls US Domestic (48 Continuous States) One second increment after first 18 seconds One second increments after first 18 seconds Offshore Domestic Full minute increments Full minute increments International Full minute increments Full minute increments Analog Calls Local Full Minute Increments Full Minute Increments Local Toll 18 second increments 18 second increments Intrastate 18 second increments 18 second increments Interstate 18 second increments 18 second increments Offshore Domestic Full Minute Increments Full Minute Increments International Full Minute Increments Full Minute Increments
Calls to a phone number outside the domestic United States to a non-ITS telephone number will be charged at the current international call rates. 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 number, rather than landline, or premium rate telephone number, may result in higher toll charges.
- 1.7 Unlimited Plans: Customers who are on an Unlimited Plan shall not be charged for calls made within the domestic United States. Unlimited plans exclude Offshore, International and operator assisted calls, auto-dialing, broadcast FAX, internet access, call center, and long duration calls over 60 minutes.
- 1.8 Calculations: If the computed charge 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.
ITS shall bill Clients for services as stated in the applicable TQ or SOC. All fees and other charges will be due in U.S. dollars, upon Client’s receipt of ITS’ invoice. Late fees will be assessed if an invoice is not paid by the 1st of the following month. The Client’s Authorized Agent/Owner/Officer listed on the Master Service Agreement and/or signing on behalf of Client are personally liable and hereby agrees and guarantees that all amounts will be paid per the terms defined in this agreement. After such period, Client will be charged a LATE FEE of $25.00 and a FINANCE CHARGE on all delinquent amounts owed to ITS. The FINANCE CHARGE is computed by applying the monthly periodic rate (as hereinafter defined) to all outstanding delinquent balances. The monthly PERIODIC RATE is equal to one and one-half percent (1.5%), which is equivalent to an ANNUAL PERCENTAGE RATE of eighteen percent (18%). Client understands that ITS shall begin to requisition all equipment and begin to facilitate the provision of said services upon the Effective Date of the applicable Master Service Agreement and relies upon the execution of said Master Service Agreement for those purposes. Therefore, the initial payment is, under any circumstances, non-refundable to Client unless ITS is unable or unwilling to provide the Services ordered in conjunction with this agreement. If ITS receives notice that Client has filed for bankruptcy full payment of all outstanding invoices are due within seven (7) days and additional deposits may be required as determined by ITS.
- 2.1 Billing Disputes: In the event Client wishes to dispute any invoiced charges, Client must provide written notice of such dispute within thirty (30) days of its receipt of such invoice, otherwise invoice is considered accepted. Such notification must include the Client’s contact information, the specific dollar amount in dispute, detailed supporting reasons for the dispute, and any supporting documentation if available. Amounts charged for Services which are reasonably disputed by Client (along with late fees attributable to such amounts shall apply), but Client may withhold the disputed amount for a period of thirty (30) calendar days following the due date set forth in the invoice, provided Client: (i) pays all undisputed charges on or before the invoice due date, (ii) presents a written statement of any billing discrepancies to ITS in reasonable detail together with appropriate supporting documentation on or before the invoice due date of the invoice in question, and (iii) negotiates in good faith with ITS for the purpose of resolving such dispute within said thirty (30) calendar day period. In the event such dispute is mutually agreed upon and resolved in favor of ITS, Client agrees to pay ITS the disputed amounts together with any applicable late fees within seven (7) days of resolution. In the event such dispute is mutually agreed upon and resolved in favor of Client, Client will receive a credit for the disputed charges and no late fees shall apply. In the event ITS has responded to Client’s dispute in writing and the Parties fail to mutually resolve or settle the dispute within such thirty (30) calendar day period (unless ITS has agreed in writing to extend such period), all disputed amounts together with the late fees shall become due and payable on the thirtieth (30th) day, and this provision shall not be construed to prevent the Parties from pursuing any legal remedies. Any invoice charges not disputed in this manner shall be deemed accepted by and binding upon Client. ITS reserves the right to deny any and all billing disputes and/or delay credits if Client’s account is in arrears or otherwise not in good standing. In the event of a service interruption, a dispute will be considered at a prorated rate. The proration is determined by taking the actual days of interruption divided by a thirty (30) day month. This proration is then multiplied by the monthly charge to determine the credit amount.
- 2.2 Failure to Make a Payment: If within its sole discretion ITS determines that Client lacks financial resources to timely make payments on invoices rendered by ITS, ITS may, upon written notice to Client, modify the payment terms set forth in the TOS so as to provide that Client pay for all Service Fees and other known or anticipated charges in advance. If, at any point after the invoice due date, Client has failed to pay any sums due and outstanding, then ITS may give Client written notification that Client has committed a material breach of these TOS due to non-payment. Said notification will be provided five (5) days prior to Service suspension or termination. Client must pay all outstanding charges, within said notice period, to avoid suspension or termination of Service. In its sole discretion, ITS may: (i) change payment terms, billing cycle, and/or payment due date; (ii) demand immediate payment by wire or other means and discontinue Service(s) without notice should ITS determine Client’s Services exceed their approved level of credit; or (iii) immediately block Client’s Service(s) if Client refuses to make any requested payments. Charges for returned, stopped payment and/or non-sufficient funds via check or direct deposit payment will be assessed a returned check fee of $30.00 per returned check. The foregoing charges shall be deemed service charges and not the only remedies for breach of these TOS. Additional remedies for breach of these TOS by Client are applicable.
- 2.3 Service Interruptions: ITS’ sole liability under this Agreement for interruption of service or failure of equipment shall be limited to that amount of ITS’ actual fixed charges incurred by Client during the period of such interruption. ITS shall not be liable for any interruption caused by the negligence or willful act or omission of Client or any third party furnishing any portion of the service hereunder.
- 2.4 Credit Review and Security Deposit: ITS reserves the right to withhold initiation of full implementation of Services under the TOS pending initial satisfactory credit review and approval thereof which may be conditioned upon terms specified by ITS including, but not limited to, security for payments due hereunder in the form of a cash deposit via wire transfer, guarantee, irrevocable letter of credit from a financial institution, or other forms of security acceptable to ITS, in its sole discretion. In instances where Client is required to provide ITS with security in the form of a cash deposit, the cash deposit shall bear interest at the rate for telephone security deposits set by the Public Utility/Service Commission in the state where Client is headquartered. If Client expects a need for additional Services, it must make appropriate adjustments to the amount of its cash deposit, if so required by ITS. Upon request by ITS at any time, Client agrees to provide financial statements or other indications of financial circumstances. As may be determined by ITS, in its sole discretion at any time, if the financial circumstances or payment history of Client is, or becomes unacceptable, ITS may require a new or increased deposit, guarantee or irrevocable letter of credit at ITS’ discretion, to secure Client’s payments for the remainder of the Term and such deposit, guarantee or irrevocable letter of credit shall be provided within five (5) days of written request. Failure of Client to provide the requested security pursuant to these TOS shall constitute a breach of these TOS and ITS may suspend or terminate Services until such time as the required security is received.
If Client requests that Service be restored after a suspension or termination due to non-payment, ITS has the sole and absolute discretion to restore such Service and may condition restoration upon satisfaction of such conditions as ITS determines, in its sole discretion, to be necessary for its protection, including requiring Client to pay a reconnection fee for each Service location being reinstated, requiring Client to execute a new Master Service Agreement, pay all past due invoices in full, pay a new installation fee, pay Early Termination Penalties, pass ITS’ credit approval and/or make advance payments. Any such monies required for restoration of such Service shall be due and paid before ITS is required to reinstate Service at the Service location.
- 4.1 Client shall not enter into any contractual relationship or other legally binding obligation with any third party which shall have the purpose or effect of encumbering the use, sale or other commercialization by ITS of the Services. All use by Client of the Services shall strictly comply with such usage guidelines as ITS may specify from time to time. Client shall ensure that its use of the Services complies in all respects with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities having jurisdiction over the Parties, the Services and/or the ITS brand. Client acknowledges that ITS has no control over the content of information transmitted by Client through the Services (whether visual, written or audible) and that ITS does not examine Client’s use of the Services or the nature of the information. ITS reserves the right to terminate the Service if Client uses the Services in violation of any such law.
- 4.2 Connectivity: Client acknowledges that use of or connection to the Internet is inherently insecure and that connection to the Internet provides opportunity for unauthorized access by a third party to Client’s computer systems, networks, and any and all information stored therein. ALL INFORMATION TRANSMITTED AND RECEIVED THROUGH THE INTERNET CANNOT BE EXPECTED TO REMAIN CONFIDENTIAL AND ITS CANNOT AND WILL NOT WARRANT THE PRIVACY, SECURITY, AUTHENTICITY, AND NON-CORRUPTION OF ANY INFORMATION SO TRANSMITTED, OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. ITS SHALL NOT BE RESPONSIBLE FOR ANY ADVERSE CONSEQUENCES WHATSOEVER OF CLIENT’S CONNECTION TO OR USE OF THE INTERNET, AND ITS SHALL NOT BE RESPONSIBLE FOR ANY USE BY CLIENT OF CLIENT’S INTERNET CONNECTION IN VIOLATION OF ANY LAW, RULE, OR REGULATION OR ANY VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANOTHER. Client shall not use the Service or any portion thereof in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior.
- 4.3 Theft of Service: Client shall notify ITS immediately, in writing or by calling our customer service line, if any device is stolen or if you become aware at any time that Client’s Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write to us you must provide your account number and a detailed description of the circumstances of the theft, fraudulent use or unauthorized use of the Services. Failure to do so in a timely manner may result in our termination of your Service for breach and additional charges to you. Until such time as ITS receives notice of the theft, fraudulent use or unauthorized use, Client will be liable for all use of the Service using a device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service. Once ITS receives notification of fraudulent use from the Client, ITS will maintain a block on Client’s outgoing calls until the Client notifies ITS that their network has been secured from further fraudulent use. Since Voice over Internet Protocol (“VoIP”) utilizes the Client’s internal network to make calls through the Internet, it is the Client’s responsibility to ensure their network is secure. ITS is not responsible for fraudulent use resulting from breach in the Client’s network.
The Client may incur additional charges from any alternate carrier company that is outside the scope of services provided by ITS in the TQ. If ITS is billed by an alternate carrier for services on behalf of Client, ITS shall pass through those charges with applicable handling fees. ITS is not responsible for any contracts or fees that Client may have with any other carrier or service provider.
The initial Service Term of this Agreement (“Initial Term”) will begin the date we provide notice to you that the Services are available for your use. This Agreement will continue in effect for the entire Term specified on the TQ or SOC and respect to said Services furnished under such Agreements the Service Term shall automatically renew for consecutive additional periods of one (1) year (each, a “Renewal Service Term”) unless terminated by either Party in writing at least thirty (30) days prior to the expiration of the Service Term or the Renewal Service Term then in effect (as applicable). The Service Term and any applicable Renewal Service Term(s) shall hereafter be referred to collectively as the “Service Term”. If no Term is specified in the applicable Agreements, then either Party may terminate the Service(s) furnished under such Agreements by giving the other Party sixty (60) days prior written notice to such effect. If Services or a Service location is added the Service Term will be extended to the later of (a) the expiration date of the current Service Term or (b) the date specified in the Technical Quote or Service Order Confirmation.
As specified in Section 2.0, all invoices rendered by ITS shall be due upon receipt. If any payment required to be made by Client is not be made within thirty (30) days after the due date (or by such other time as the relevant Service Agreement may provide), ITS may disconnect or disable all Service to Client. In any such event, ITS shall have the right, within its sole discretion, (a) to decide whether or not to reconnect or re-enable the Service upon Client’s payment of all past due amounts (including, without limitation, any interest that may be payable) and in the event that ITS shall agree to reconnect or re-enable the Service, to require the payment of a reconnection fee for so doing, or (b) to terminate the Agreement.
- 7.1 Bankruptcy: ITS may suspend or terminate any or all Services to Client and terminate all Service Agreements between Client and ITS immediately and without written notice to Client if Client becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors or becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such involuntary petition or proceeding is not dismissed within sixty (60) days of filing.
- 7.2 For Cause: ITS may terminate the Agreement in the event of a breach by Client of any term, provision or condition of the Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same. In the event of any such termination by ITS, ITS will disconnect or disable all Service to Client (including, without limitation, as furnished under all Service Agreements between ITS and Client).
Disconnection of services - the disconnection process shall begin once the Disconnect Request Confirmation has been signed by the Client and ITS has confirmed receipt. Services will continue and will be billed until ITS and any underlying carriers complete the disconnection process, or 30 days, whichever is later. It is recommended the Client ensures their replacement services are operational before requesting disconnection, as ITS is not responsible for any interruption or failure of service once disconnection has been requested by Client.
Clients terminating this agreement or any portion of their service at any time prior to the end of the Service Term will pay an Early Termination Fee (“ETF”). The ETF will include all Monthly Recurring Charges (“MRC”) calculated at one hundred percent (100%) multiplied by the remaining months on the contract as well as any install, set up or one time charges that were originally waived or credited and related to the service. The ETF will be billed upon notification from Client and due upon receipt. Client shall also be subject to ETF’s if Client’s monthly invoice amount falls below seventy-five percent (75%) of Client’s previous six (6) months average invoice amount. Any outstanding monies due and payable to ITS must be paid in full prior to the release of Client’s Services.
- 9.1 Client’s Rights to Use: Client has the right to use Digital and Analog lines, IP Addresses and Circuits when in compliance of active MSA and related Service Term. In the event of default (see Section 2 above) or termination (see Section 7 above), Client forfeits their right to use any and all Services. ITS may reassign Services at its sole discretion. If services are disconnected due to non-payment, Client loses all rights to use Phone Numbers, IP Addresses and Circuits. In addition, once disconnected, Phone Numbers, IP Addresses and Circuits may no longer be available for reconnection or continued right to use. No guarantee can be made as to Client’s ability to regain the right to use these same Phone Numbers, IP Addresses and/or Circuits. ITS is not responsible for Client’s loss of Phone Numbers, IP Addresses and/or Circuits upon termination. All charges for service and calls billed are the sole responsibility of the Client.
- 9.2 Number Transfer on Service Termination: For those Services that require this function, Local Number Portability (LNP) refers to the order from the Federal Communications Commission (FCC) requiring all telecom providers to allow customers to retain their phone numbers when changing service providers, as long as the customer stays within the same local calling zone. Instead of disconnecting service numbers, you may choose to port your number(s) “out” to another carrier. You initiate this by contacting a new service provider to initiate a port-in. The new service provider will then contact ITS with a port-out request. We will follow industry-sanctioned procedures to fulfill the port-out request if: (a) such new service provider is able to accept such number; and (b) your account is completely current, including payment for all charges and applicable ETF’s. IP Addresses and Circuits are not portable. ITS is not responsible for Client’s loss of Phone Numbers, IP Addresses and/or Circuits due to non-payment. All charges for service and calls billed are the sole responsibility of the Client.
Each Party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other Party, including, but not limited to, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data (“Confidential Information”). Confidential Information shall not include information that: (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving Party; (b) was known to the receiving Party as of the time of its disclosure; (c) is independently developed by the receiving Party; or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing Party. Except as provided for in this Agreement, each Party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Each Party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each Party and its employees shall survive the expiration or termination of this Agreement. Client agrees that if it is required by law to disclose the Confidential Information, Client shall first give written notice of such required disclosure to ITS and ITS shall have a reasonable opportunity to prevent or limit the third party disclosure. Client acknowledges that monetary damages may not be sufficient remedy for unauthorized disclosure or use of Confidential Information and that ITS may seek without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. The obligations under this Agreement shall: (a) with regard to any trade secrets of ITS, remain in effect as long as the information constitutes a trade secret under applicable law; and (b) with regard to the Confidential Information, remain in effect during the term of this Agreement and for a period of five (5) years thereafter. Neither Party shall disclose to any third party the terms and conditions of this Agreement without the prior written consent of the other Party.
- 11.1 No Warranty: CLIENT ACKNOWLEDGES AND AGREES THAT THE SERVICE IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS, AND CLIENT’S USE OF THE SERVICE IS AT CLIENT’S SOLE RISK. ITS MAKES NO, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICE(S), EQUIPMENT AND/OR NETWORK PROVIDED BY ITS, PROVIDED UNDER THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF TITLE, AND ANY WARRANTY ARISING FROM ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE. ITS DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS OR THAT THE SERVICE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES. ITS EXERCISES NO CONTROL OVER, AND HEREBY DISCLAIMS ANY RESPONSIBILITY FOR, THE ACCURACY AND QUALITY OF ANY DATA OR CONTENT TRANSMITTED WITH THE USE OF THE SERVICE. CLIENT ACKNOWLEDGES AND AGREES THAT ITS DOES NOT OWN THE UNDERLYING TELECOMMUNICATIONS CIRCUIT, FACILITIES OR EQUIPMENT UTILIZED TO PROVIDE THE SERVICES AND IS ONLY RESPONSIBLE FOR THE PERFORMANCE OR NON-PERFORMANCE THEREOF TO THE EXTENT OUTLINED IN ITS’ SLA. CLIENT HEREBY EXPRESSLY ASSUMES THE RISK OF ITS USE OF ANY INFORMATION TRANSMITTED VIA THE SERVICE.
- 11.2 VoIP Services: Client acknowledges that ITS does not guarantee that the VoIP Service will operate with alarm, security, medical and/or other monitoring systems and services or Client-provided equipment, facilities and services (“Alarm or Paging Services”). These services may require ITS to provide traditional analog services to support. If Client chooses to utilize VoIP services for these types of services, Client must ensure that all alarm services and related signal transmission services are tested to validate that they remain fully operational after installation of VoIP service. Client is solely responsible for obtaining such testing from the appropriate alarm service providers, ensuring that such testing is completed in a timely manner, and confirming that the alarm services and any related Client-provided equipment, facilities and systems that are connected to the VoIP service operate properly. Client is solely responsible for any and all costs associated with this activity. CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT 911 AND E911 VoIP SERVICES WILL NOT BE AVAILABLE UNDER THE FOLLOWING CIRCUMSTANCES: (A) THE TELEPHONE DEVICE TO WHICH A PARTICULAR TELEPHONE NUMBER HAS BEEN ASSIGNED IS MOVED TO A LOCATION OUTSIDE THE PREMISES WHERE THE TELEPHONE DEVICE WAS ORIGINALLY INSTALLED; (B) THERE IS AN OUTAGE, DEGRADATION OR OTHER DISRUPTION OF POWER AT THE CLIENT’S LOCATION; OR (C) THERE IS OUTAGE, DEGRADATION OR OTHER DISRUPTION OF THE CLIENT’S BROADBAND INTERNET CONNECTION, WHETHER SUCH CONNECTION IS PROVIDED BY ITS OR ANOTHER PROVIDER. UNDER ANY OF THE CIRCUMSTANCE ENUMERATED IN ITEMS (A) THROUGH (C), ABOVE, CLIENT ACKNOWLEDGES AND AGREES THAT ITS WILL NOT BE LIABLE FOR ANY INABILITY TO DIAL 911 USING ITS’ VoIP SERVICES, AND CLIENT FURTHER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS ITS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO ITS IN CONNECTION WITH ITS’ VoIP SERVICES, FROM ANY AND ALL CLAIMS, LOSSES (INCLUDING LOSS OF PROFITS OR REVENUE), DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND EXPENSES) BY, OR ON BEHALF OF, CLIENT OR ANY THIRD PARTY OR USER OF ITS’ VoIP SERVICES RELATING TO THE NON-AVAILABILITY OF 911 DIALING. ITS’ SUPPLIERS WILL NOT BE LIABLE TO CLIENT FOR ANY DAMAGES FOR ANY REASON. The following physical notice will be supplied with ITS-supplied VoIP Equipment:
FCC 911 NOTICE: DO NOT REMOVE THIS LABEL
911 Service may not be available on this phone if:
- Phone is moved to a location other than where it was originally installed, or
- Phone loses either power or broadband service
- 11.3 Service Delivery: ITS is a Competitive Local Exchange Carrier (“CLEC”) and is also a reseller of other carrier’s services, facilities and equipment. Further, ITS is dependent on its carriers for delivery of service, and as such, cannot guarantee any requested turn up/start of service date, or ensure that ITS or its underlying facilities carriers can achieve any projected turn up/start of service date. ITS shall not be liable to Client for losses or damages resulting from ITS’ inability to provide Service or from any delay in meeting a scheduled Start of Service Date or a scheduled change in service date.
- 11.4 Warranty Disclaimer and 911: Client’s only remedies for VoIP Service performance issues or failure of the VoIP Services to perform are (a) the service interruption credit(s) described Section 2.3, and (b) Client’s ability to disconnect the VoIP Services. If Client uses the public Internet for voice calls (or voice call signaling), Client acknowledges that the quality of voice calls may be adversely affected and that Client may not be able to access 911 or E911 services. Further, 911 or E911 services may not be available for ITS’ SIP Trunking products, which are not intended as a replacement for local phone service.
ITS DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT. ITS WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. THIS LIMITATION OF LIABILITY APPLIES BOTH TO PRODUCTS AND SERVICES AND SUPPORT CUSTOMER PURCHASES UNDER THIS AGREEMENT. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF PRODUCTS OR SERVICES BUNDLED WITH THE PRODUCTS, ITS IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PURCHASE OF PRODUCTS UNDER THIS AGREEMENT. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF SERVICES NOT BUNDLED WITH PRODUCTS UNDER THIS AGREEMENT, ITS IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PURCHASE OF SERVICES UNDER THIS AGREEMENT. CUSTOMER AGREES TO PROVIDE TO ITS, AT NO CHARGE, AN UNLIMITED LICENSE TO USE ANY PATENTS OR INTELLECTUAL PROPERTY THAT ARE UTILIZED IN ANY ITS PRODUCTS. ITS DOES NOT WARRANT THAT THE PRODUCTS OR ANY NETWORKS OR SYSTEMS PROTECTED BY THE PRODUCT WILL BE FREE FROM VULNERABILITY, INTRUSION, ATTACK, OR OTHER DAMAGE.
- 13.1 ITS’s Indemnification of Client: ITS shall indemnify, defend and hold harmless Client and Client’s directors, officers, shareholders, members, employees and agents, and their respective heirs, successors and assigns, from and against any and all claims, actions, demands, damages, costs, losses, liabilities and expenses arising from damage to tangible personal property located at, or from injury to or the death of any person occurring at, Client’s premises that result from any negligent or willful acts or omissions of ITS or of any agent, employee or contractor of ITS that occur in the course of the performance of any Service installation or maintenance work at the Client’s premises, such indemnity and hold harmless to include, without limitation, the obligation to provide all costs of defense (including, without limitation, reasonable attorneys’ fees and expenses).
- 13.2 Client’s Indemnification of ITS: Client shall indemnify, defend and hold harmless ITS and ITS’ directors, officers, shareholders, members, employees and agents, and their respective heirs, successors and assigns, from and against any and all claims, actions, demands, damages, costs, losses, liabilities and expenses (“Claims”) arising from (a) any harm to any person occurring at Client’s premises and resulting from any negligent or willful acts or omissions of Client, of any agent, employee or contractor of Client or of any licensee or invitee of Client, (b) any breach of any representation, warranty, covenant or agreement of Client in the Agreement or (c) any use of the Service, ITS’ network or any third party network in violation of applicable law or the Rules of Use (the Claims to include, in the case of clause (b) and/or clause (c) of this sentence and without limitation, any Claims arising under the Digital Millennium Copyright Act or arising as a result of any infringement or misappropriation of any intellectual property rights). The indemnification obligation set forth in this Section shall include the obligation to pay all costs of defense (including, without limitation, reasonable attorneys’ fees and expenses). Nothing in this Section shall be deemed to reduce the scope of or otherwise limit any other indemnification by Client provided for in these TOS.
- 13.3 Notification: Client will provide ITS with written notice of each instance of which Client becomes aware that could reasonably be expected to give rise to claim for indemnification under Section 13.1 above; provided, however, that no failure on the part of Client to give any such notice shall relieve ITS of any of its obligations under Section 13.1 above unless, and then only to the extent that, such failure to give notice shall impair ITS’ ability to successfully defend the matter in question. ITS may elect to control the defense of any matter in respect of which Client claims indemnity. ITS will provide Client with written notice of each instance of which ITS becomes aware that could reasonably be expected to give rise to claim for indemnification under Section 13.2 above; provided, however, that no failure on the part of ITS to give any such notice shall relieve Client of any of its obligations under Section 13.2 above unless, and then only to the extent that, such failure to give notice shall impair Client’s ability to successfully defend the matter in question. Client may elect to control the defense of any matter in respect of which ITS claims indemnity.
- 14.1 Return Policy: All returns must be requested within 30 days from the Installation Date or Invoice Date, whichever is sooner.
- 14.2 Defective Merchandise: If any product purchased is defective or damaged ITS will replace that product free of charge. ITS will pay for the shipping back to our location. To return a defective/damaged product, contact ITS at 800-876-4ITS (4487). Client will be issued a return approval and will need to return equipment within seven (7) days of receiving approval. Equipment must be shipped back via FedEx or another service that allows for tracking. As soon as ITS receives the request for replacement of a defective/damaged unit, ITS will immediately ship out a replacement product (provided it is stock). If the product you are returning is not in stock, ITS will backorder it and Client will be notified of the estimated ship date. If ITS does not receive the defective/damaged equipment back within 14 days of the initial request ITS will bill your account for the replacement equipment.
- 14.3 Merchandise Returned for Refund: If within 30 days, any product ordered does not meet Client’s requirements and is unused (re-sellable), ITS will refund the product price less a 25% restocking charge (25% is based on ITS list price, not necessarily the price paid). Unused (Re-sellable) condition definition: Equipment is considered unused (re-sellable) when it is returned in its original box, with all manuals and accessories. The equipment, manuals, and box must be unmarked and not show any signs of wear or damage. If within 30 days, any products Client purchased does not meet Client’s requirements but does not meet the definition above of Unused (re-sellable) condition, ITS will refund the product price less a 25% restocking charge (25% is based onITS list price, not the necessarily the price paid). For both used and unused (re-sellable) equipment returns, Client is required to pay for the shipping back to ITS. To return the product, contact ITS at 800-876-4ITS (4487). Client will be issued a return approval and be given shipping instructions. Once equipment is received and inspected to determine the condition of the equipment (used or un-used) ITS will credit your account the amount paid less the restocking charge depending on the condition of the equipment returned.
- 14.4 Limitation of Liability – Equipment: EXCEPT AS EXPRESSLY SET FORTH HEREIN WITH RESPECT TO THE PRODUCTS SOLD BY ITS, NO WARRANTIES APPLY (and ITS specifically disclaims all warranties), WHETHER EXPRESS, IMPLIED OR ARISING BY OPERATION OF LAW (INCLUDING,WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). IN NO EVENT, WHETHER DUE TO BREACH OF WARRANTY HEREUNDER OR ANY OTHER CAUSE WHATSOEVER, SHALL ITS BE LIABLE FOR OR OBLIGATED IN ANY MANNER TO PAY CONSEQUENTIAL,INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, COST OF SUBSTITUTE PRODUCTS AND PERSONAL INJURY OR PROPERTY DAMAGE, WHETHER SUCH CLAIM IS BASED ON CONTRACT OR TORT OR ANY OTHER THEORY OF LAW. ITS’ only duties in connection with the sale of the Products shall be to honor the limited warranty for the Products as defined by the Product’s original equipment manufacturer as set forth herein. To the extent assignable, any manufacturer warranty for Products shall be assigned by ITS and passed through to the Client. ITS’ sole liability, if any, for loss or damage arising out of mistakes, omissions, interruptions, errors or any other causes relating to the services, INCLUDING THE NEGLIGENCE OF ITS, shall be limited to the credit for service interruption for each separate period of interruption. EXCEPT FOR THE FOREGOING, CLIENT WAIVES ANY RIGHT OF RECOVERY AGAINST ITS FOR ANY CLAIMS, DEMANDS, ACTIONS, LIABILITIES, LOSSES, COSTS OR EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES OR COSTS) (“CLAIMS”) BY OR DUE TO THIRD PARTIES AND SUFFERED BY CLIENT, DIRECTLY OR INDIRECTLY RELATING TO OR ARISING FROM THE NEGLIGENCE OF ITS OR THE MANUFACTURE, DISTRIBUTION, SALE, USE OR INSTALLATION OF ANY PRODUCT OR THE PROVISION OF THE SERVICES. CLIENT SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS ITS AGAINST ANY AND ALL CLAIMS BY THIRD PARTIES RELATED TO OR ARISING FROM THE SALE OF THE PRODUCTS OR PROVISION OF THE SERVICES DESCRIBED HEREIN. The provisions of this section shall survive termination of services.
- 15.1 Use of the Equipment: Client agrees that the Equipment Rental/Maintenance Agreement shall not grant Client any property rights in the Equipment. Specific Equipment details (make, model, serial number) will be provided to Client on the Order Confirmation. Client shall use the Equipment in the intended manner by the manufacturer thereof. ITS shall be entitled to inspect the Equipment at any time and will provide reasonable notice to Client of ITS’ intent. ITS may require markings to be affixed to the Equipment. Client shall keep the Equipment free from any markings or labeling, which might be interpreted as a claim of ownership thereof by Client. Without the prior written consent of ITS, Client shall not assign, lend, pledge, transfer, or sublease the Equipment, permit to exist any security interest, lien or encumbrance with respect to any of the Equipment; or cause or permit any of the Equipment to be moved from the location specified in the Agreement. Client shall bear the risk of any loss, theft, damage or destruction to the Equipment during the Term. Client agrees, at its sole expense, to provide the proper environment and electrical and telecommunications connections for the Equipment. Client is solely responsible for correcting any hazardous conditions that may adversely affect ITS personnel or the Equipment. Client shall obtain and maintain at its own expense insurance against the loss of or damage to such Equipment, including, without limitation, loss by fire or other casualty.
- 15.2 Maintenance Services – ITS shall provide routine diagnostic and maintenance services on the Equipment, as follows:
- In the event that Client is experiencing a problem with the Equipment, Client will be required to call ITS and open a trouble ticket. ITS shall respond to Client’s request via telephone or email within four (4) business hours. Client will provide the location where the Equipment is housed to enable ITS to remote access.
- ITS shall use all commercially reasonable efforts to identify and correct the problem with the Equipment. If the Equipment cannot be fixed and none of the exclusions in Section (e) below apply, ITS shall, at their sole discretion, replace the defective Equipment with either new or reconditioned Equipment.
- ITS WARRANTS THAT THE SERVICES TO BE PROVIDED UNDER THIS AREEMENT WILL BE PERFORMED IN A TIMELY AND WORKMANLIKE MANNER, USING ONLY QUALIFIED TECHNICIANS FAMILIAR WITH THE EQUIPMENT AND ITS OPERATION. ITS MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THIS AGREEMENT OR THE MATERIALS OR SERVICES CONTEMPLATED HEREUNDER. ITS MAKES NOREPRESENTATIONS OR WARRANTIES REGARDING THE EQUIPMENT.
- Maintenance services may be provided by an ITS affiliate or subcontractor.
- If persons other than those employed or contracted by ITS shall repair, modify or perform any maintenance service on any Equipment, or if Client fails to maintain the Equipment in accordance with the manufacturer’s requirements, and as a result of either of the foregoing, further maintenance services by ITS are required to restore the Equipment to good operating condition or the Equipment needs to be replaced, such further maintenance services or replacement Equipment charges shall be billed to Client at ITS’ s then current time and materials rate. Note: Equipment must be in operation at the same location as the service address for network services, or Client must notify ITS in the event that Client relocates the Equipment to another facility. ITS shall use reasonable efforts to provide the maintenance services at the new location, but has the right to terminate this Agreement without liability if the Equipment is relocated to a facility outside of the ITS servicing area.
- 16.1 Force Majeure: ITS shall not be liable to Client for any loss, cost, or damages for any inadequacy, stoppage, interruption or discontinuance of service to Client, or any failure by ITS to perform in accordance with the terms of this Agreement, caused by factors beyond the reasonable control of ITS, which includes, without limitation, failures and defects in telephone lines, cables, junctions or other hardware and equipment, acts of God, strikes, lockouts, or other industrial disturbances, wars, whether declared or undeclared, insurrections, riots, governmental action, explosions, fire, floods, or earthquakes. Notwithstanding the occurrence of any such event, Client shall continue to pay and remain responsible for ITS fees and services. However, ITS may, at is sole discretion, (a) cancel this Agreement; or (b) modify its service as ITS deems reasonable or necessary.
- 16.2 Interpretation: This Agreement, subject to applicable tariffs, contains all terms, covenants, conditions, and agreements between the parties hereto relating to the subject matter of this Agreement and no prior agreement, understanding or representation, either oral or written pertaining to the same, shall be valid or of any force or effect. The language in all parts of this Agreement shall be construed according to its fair meaning and not strictly for or against any of the parties hereto, irrespective of who wrote the same.
- 16.3 Attorneys Fees: If any legal action arises under or with respect to this Agreement, the prevailing party shall be entitled to recover from the non- prevailing party all costs and expenses, including attorney’s fees, incurred in enforcing this Agreement (including any appeals). ITS has the right to choose the method of resolution, including mediation and/or arbitration.
- 16.4 Location of Legal Proceedings: Should a Client terminate this Agreement, such termination shall not affect the liability of the Client’s accounts and amounts then owing from Client. In the event that suit is instituted on this Agreement, the Client agrees to pay all court costs and such additional sums as the court may deem reasonable as attorney’s fees if ITS is the prevailing party. Otherwise, each party is responsible for their own court costs and respective attorney fees. All legal proceedings will take place in the City of Simi Valley, Ventura County, California.
- 16.5 Assignment: ITS may transfer, assign or otherwise encumber this Agreement and its rights and obligations hereunder. Client may not assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of ITS, which consent may be withheld in ITS’s sole discretion, except to a party that acquires all orsubstantially all of Client’s assets as part of a corporate merger or acquisition. Any attempted assignment or delegation without such consent will be void. Should Client’s company/business be purchased, acquired, merged with another entity, and the acquiring entity continues to be enrolled in, use or pay for services after any Client ownership changes, Client agrees and accepts liability for all Agreement terms. Furthermore, in the event of an assignment change, both Parties shall accept responsibility for payment of Services and the respective accounting there of.
- 16.6 Governing Law: The laws of the State of California shall govern this Agreement without reference to conflicts of law principles. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter covered.
- 16.7 Tariffs: The Agreement incorporates by reference the terms of each Tariff to the extent Client subscribes to Services provided by ITS which are covered by any applicable Tariff. The Agreement may be superseded by a Tariff filed with the appropriate regulatory agency, which Tariff may contain such modifications of the provisions of the Agreement as ITS deems appropriate. ITS may modify its Tariffs from time to time in accordance with law and thereby affect Services furnished to Client hereunder, except that the TOS of the Agreement shall supplement, to the extent not inconsistent, Tariff terms and conditions. If any of ITS’ applicable Tariffs are cancelled during the Term of the Agreement, such cancelled Tariff(s) will be deemed to be incorporated by reference into the Agreement on the effective date of cancellation, as supplemented by any non-inconsistent product descriptions, definitions, prices and other terms and conditions or similar document posted by ITS on a ITS website accessible by Client and may be modified by ITS from time to time and thereby affect the previously tariffed Service furnished to Client.
- 16.8 Notices to Party: Unless otherwise set forth herein, all notices, demands, consents, requests, approvals or other communication which either Party is required or desires to give or make upon or to the other Party (“Notices”) shall be in writing and will be effective when sent, if hand delivered or faxed (with confirmation of receipt); on the next business day if sent by a generally recognized overnight delivery service (subject to confirmation from the service); or on the date received if sent by United States certified or registered mail, return receipt requested. Such Notices will be sent to the addresses or fax number (as appropriate) of the receiving Party indicated on the Service Agreement, or at such other address or to such other fax number as either Party may provide to the other by written notice. Client acknowledges that it is Client’s sole responsibility to supply immediate notice to ITS if Client changes any of its contact information. If at any time Client’s name or billing information changes from that which is set forth above, Client shall have five (5) days to inform ITS of such changes in accordance with the Notice provisions set forth in the Agreement.
- 16.9 Severability: In the event any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid, illegal or unenforceable by a court with jurisdiction over the Parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intention of the Parties in accordance with the applicable law, and the remainder of this Agreement shall remain in full force and effect. The illegality or unenforceability of any provision of this Agreement does not affect the legality or enforceability of any other provision or portion of this Agreement.
- 16.10 Compliance with Law: In conjunction with the Agreement, each Party shall at all times comply with all applicable federal, state, and local statutes, ordinances, regulations and orders of any commission or other government body. Client shall indemnify, defend and hold ITS harmless against all taxes, fees, assessments or similar amounts, if any, which may be assessed against Client or ITS for Client’s use of the Services hereunder. Client shall further indemnify, defend and hold harmless ITS against all claims or liability due to or arising out of failure of Client to obtain any permit or other consent as may be required from any local government or other regulatory body for use of the Services.
- 16.11 Binding: This Agreement shall be binding on the Parties hereto and their respective personnel and legal representatives, successors, and permitted assigns.
- 16.12 Representations: Each Party represents and warrants that (a) it has the full right and authority to enter into this Agreement, (b) it is a business entity duly organized under the laws of its jurisdiction, (c) that there are no actions, suits, or proceedings, pending or threatened against it that would materially impair its performance under this Agreement, (d) it complies with all applicable federal, state and local laws and regulations, rulings and orders of governmental agencies, including but not limited to the Communication Act of 1934 as amended by the Telecommunications Act of 1996, as amended, the Rules and Regulations of the Federal Communications Commission, and state public utility or service commissions, and (e) it has obtained, and will maintain all certifications and other authorizations necessary for Client to use the Services, and for ITS to provide the Services.
- 16.13 Relationship of Parties: Neither the Agreement nor the provision of Service hereunder shall be deemed to create any joint venture, partnership or agency between ITS and Client; the Parties are independent contractors and shall not be deemed to have any other relationship. Neither Party, nor any agent or representative of either Party, shall have, or hold itself out as having, the power or authority to bind or create liability for the other Party by its intentional or negligent act and no claimed act of authority shall have any binding effect.
- 16.14 No Right to Intellectual Property: The Agreement confers no right to use the name, service marks, trademarks, copyrights, or patents of either Party except as expressly provided herein. Neither Party shall take any action, which would compromise the registered copyrights or service marks of the other.
- 16.15 No Third Party Beneficiaries: The Agreement is being executed for the sole and exclusive benefit of the Parties hereto and is not for the benefit of any third parties. The execution hereof shall not create any obligations or confer any rights on any person or entity other than the Parties hereto
- 16.16 Waiver: The delay or failure of a Party to enforce or insist upon compliance with any of the terms or conditions of this Agreement or to exercise any remedy provided herein, the waiver of any term or condition of this Agreement, or the granting of an extension of any time for performance shall not constitute the permanent waiver of any term, condition or remedy of or under this Agreement, and this Agreement and each of its provisions shall remain at all times in full force and effect unless and until modified as provided herein
- 16.17 Modifications: Unless otherwise provided in this Agreement, no modification, amendment or other change may be made to this Agreement or any part thereof unless reduced to writing and executed by authorized representatives of both Parties.
- 16.18 Survival: Any obligations of the Parties relating to confidentiality, limitations on liability and indemnification shall survive termination of this Agreement.
- 16.19 Headings: All Section headings and captions used in the Agreement are purely for convenience and shall not affect the interpretation of the Agreement.
ITS – Terms of Service