Call or text 1 (800) 857-1517 help@phonewire.com

Terms and Conditions

Our Guarantee

Thank you for shopping Phonewire.com.  If you’re not completely satisfied with your purchase, we’ll gladly provide an exchange or refund your purchase price for items returned in their original condition and original packaging within 10 calendar days of your purchase date (excluding installation costs, configuration pre-programming, return shipping charges, discounts, shipping and handling charges, and any separate fees or services/subscriptions) not installation date.  Equipment and services provided or purchased as part of term agreement will have different return, exchange, and refund policies. Prepaid subscriptions, prepaid support, or prepaid services are not refundable. In cases of term agreement, contract, or third-party transaction, please refer to that agreement and/or Terms and Conditions for all and any appropriate rights and rules.

Refunds and exchanges will be less any rebates received and shipping costs. Certain promotional offers may require you to return all items you received with your equipment and could cause you to become ineligible for any promotional discounts. You may also be required to pay a restocking fee based on the Full Retail Price of the equipment. You are responsible for any charges incurred prior to service cancellation, including porting, long distance, taxes, control charges, regulatory program fees, and other fees.

Return Authorization

To return an item, a return authorization (“RMA”) number must be requested before a return can be qualified.  You must request the RMA number, confirmation of return authorization, and instructions.  

Refunds

Returns received in our warehouse will be processed within 10 business days.  Refunds typically reflect in your account within 5 business days after your return is processed.  A refund will be issued as a credit to your original form of payment for the full purchase price (excluding installation costs, return shipping charges, discounts, shipping and handling charges and any separate fees).  You agree that a Refund will not apply to any shipment that does not follow RMA requirements and destination.  Phonewire will not be responsible for loss or damage of any shipment. 

Exchanges

Items received damaged or defective can be exchanged by contacting our customer support team by e-mail or phone.  Provide us with your name, business name, e-mail address, telephone number and details of your exchange request, including your order number.  Expect one of our customer support team members to respond within 24 hours.

Email Communications

Any and all email communications from phonewire.com are “For discussions purposes only”, shall be considered as a draft, and do not serve as a legally binding contract or agreement or obligation of offer. There is no intention to create a contract except pursuant to a later written agreement. Any terms set forth in any emails are subject to later review and approval by the parties and are non-binding until the signing of a physically executed, formal written agreement by the parties. 

Customer Support

Phone: 1 (877) 877-9473
Email: help@phonewire.com
Hours: Mon – Fri 9:00AM to 5:00PM Central Time Zone

TERMS AND CONDITIONS

 
These terms and conditions apply to any and all online properties (“Website”) and to any and all sales and support of products and services (“Products”) by Phonewire, Inc. (“Seller”) and all related divisions and entities to you (“Buyer”).

 

1. Acceptance. Seller’s acceptance of all orders, by any means including oral, fax, e-mail, or electronic using Seller’s website, is expressly conditioned upon Buyer’s consent, either express or implied, to these terms and conditions. Seller will not accept, and hereby rejects, any other terms and conditions (whether written or oral) originating from Buyer that attempt to modify, add to, or otherwise change the terms and conditions stated herein. Buyer’s acceptance of these terms and conditions may be made, in addition to any other act that constitutes acceptance by law, by any of the following: (a) Buyer’s signature of Seller’s Customer Application, (b) Buyer’s written acknowledgment or other act or expression of acceptance, (c) Buyer’s acceptance of shipment from Seller, or (d) Buyer’s payment for any Products.

2. Shipment/Title/Risk of Loss/Taxes. Seller will select carrier to transport products to shipping location designated by buyer, unless at time the order is placed, buyer instructs Seller which carrier to use for product shipment. Seller shall not be liable for any shipping delays. Buyer shall bear all costs including without limitation, costs of transportation, insurance, applicable federal, state, municipal or other governmental taxes, applicable import/export or customs duties, license fees, brokerage fees and similar charges, however designated or levied on the sale of Products. All Products will be deemed accepted by Buyer upon shipment. Title to the Products shall pass to Buyer at the time the Products are loaded on a truck at Seller’s dock or when delivered to Buyer’s representative at Seller’s facility. All risk of loss, damage, theft or destruction passes to Buyer at Seller’s dock or when delivered to Buyer’s representative at Seller’s facility. No such loss, damage, theft or destruction to the Products, in whole or in part, shall impair the obligations of Buyer under this agreement, all of which shall continue in full force and effect. Buyer, at its expense, will make and negotiate any claims against any carrier, insurer, customs broker, freight forwarder or customs collector. Any loss occasioned by damage in transit will be for Buyer’s account and claims for such loss shall be made solely against the carrier. All shipments to be made hereunder shall at all times be subject to the approval of Seller’s credit department.

 

For shipment outside the US, title to the Products shall pass to Buyer at the time the Products are loaded on a truck at Seller’s dock or when delivered to Buyer’s representative at Seller’s facility. All risk of loss, damage, theft or destruction passes to Buyer at Seller’s dock or when delivered to Buyer’s representative at Seller’s facility. No such loss, damage, theft or destruction to the Products, in whole or in part, shall impair the obligations of Buyer under this agreement, all of which shall continue in full force and effect. Buyer, at its expense, will make and negotiate any claims against any carrier, insurer, customs broker, freight forwarder or customs collector. Any loss occasioned by damage in transit will be for Buyer’s account and claims for such loss shall be made solely against the carrier. All brokerage fees, duties, taxes and import fees are the responsibility of the Buyer. All shipments to be made hereunder shall at all times be subject to the approval of Seller’s credit department.

3. All claims for damages or shortages of Products or Rejection of Products must be made by Buyer to Seller and Freight Carrier in writing within twenty four (24) hours of receipt of Products and must state in reasonable detail the reason for the rejection or the amount of the alleged damage or shortage. Unless such notice is given within such twenty-four hour period, Buyer is conclusively presumed to have fully inspected the Products with no claim for damages, shortages or grounds for rejection. Packages showing severe external damage at the time of delivery should be refused with refusal notice made to Seller. Minor damage or shortage at the time of delivery must be noted on the freight shipping ticket, signed and dated by the driver. Seller recommends to save all packing slips, boxes and packing material until the dispute is completely resolved.

4. To secure payment for all purchases from Phonewire, Inc. now and in the future, Buyer hereby grants Phonewire, Inc. a security interest in all of Buyer’s now existing or hereafter created or arising personal property including, without limitation, all inventory, equipment, accounts, chattel paper, instruments (including but not limited to all promissory notes), letter-of-credit rights, letters of credit, documents, deposit accounts, investment property, money, other rights to payment and performance, and general intangibles (including but not limited to all software and all payment intangibles); all fixtures, commercial tort claims, securities, supporting obligations and any and all proceeds of the foregoing. Buyer hereby authorizes Seller to prepare and file any financing statement as necessary under the UCC (PPSA Canadian customers). Buyer further agrees to promptly execute any other documents requested by Seller such as a security agreement, in order to protect Seller’s security interest. Upon any default by Buyer of any of its obligations to Seller, Seller shall have all the rights and remedies of a secured party under the Uniform Commercial Code (or PPSA Canadian customers), which rights and remedies shall be cumulative and not exclusive.

5. Payment. Unless otherwise agreed in a writing signed by Seller, all purchases on credit terms must be paid in accordance with Seller’s normal terms of sale, which are net thirty (30) days from invoice date and in payable in USD only. All past due amounts are subject to a one and a half percent (1.5%) monthly financing charge or the highest interest rate permitted by law, whichever is lower. All drafts dishonored for any reason shall be assessed a thirty dollar ($30.00) service charge. Buyer may not use anticipated credit memos before Seller issues the credit on account. Payment using an anticipated credit memo before Seller has issued credit will be considered a short payment and may result in delayed shipments. Seller does not issue refunds. Credit memos must be used on current outstanding balances or future purchases. In the event that Buyer utilizes a credit card to purchase Products, Buyer agrees to not unnecessarily dispute such charges and further agrees to use best efforts to resolve any good faith dispute. Seller has no continuing obligation to deliver Products on credit. Seller may extend credit to Buyer for purchasing Products to the extent Buyer may be eligible under the applicable Seller’s programs and consistent with Buyer’s credit capability, as determined by Seller from time to time in Seller’s discretion.

6. Returns. The terms for all Product returns are limited to those set forth in Seller’s DOA and Non-DOA Return Policy which outline return merchandise authorization (“RMA”) policies and procedures and are located on Seller’s website and in Seller’s catalog and may be modified in any manner and at any time by Seller. Requests for RMA are to be made on the Seller’s website. All returns must be placed in shipping box along with RMA Packing List from Seller and clearly marked externally with the RMA number. All returns are subject to product replacement or credit only. The time period allowed for returns are determined by manufacturers of the Products and are listed in Seller’s Website (RMA Guidelines). Any shipment made to seller without an RMA number will be refused. Seller is not responsible for any items shipped to Seller without prior authorization.

7. No Warranties by Seller. Product warranties, if any, are provided by the manufacturer or publisher of the Products. SELLER MAKES NO WARRANTIES EXPRESS OR IMPLIED OF ANY KIND WITH REGARD TO THE PRODUCT. SELLER DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

8. Buyer shall be in default under this agreement upon the happening of any of the following events or conditions: (a) default by Buyer on payment of any installment, invoice, bill or any other indebtedness or obligation now or hereafter owed by Buyer to Seller, (b) default in the performance of any obligation, covenant or liability contained in this agreement or any other agreement or document between Buyer and Seller, (c) any inaccuracy with respect to any warranty, representation or statement made or furnished by Buyer, (d) dissolution, termination of existence, insolvency, business failure, or discontinuance of Buyer’s business or the appointment of a receiver for any part of the property of, or assignment for the benefit of creditors by, Buyer or the commencement of any proceedings under any bankruptcy reorganization or arrangement laws by or against Buyer or the attachment, levy, seizure or garnishment of any of Buyer’s property, rights, assets (contingent or otherwise) including the Products, or (e) any change in control of the ownership or management of Buyer, unless prior to the occurrence of such change of control Seller shall have been notified in writing and Buyer shall have obtained Seller’s prior written approval prior to such change in control.

9. Seller Remedies. Upon the occurrence of any event of default or any time thereafter, Seller may in its sole discretion, in addition to any other remedy available to Seller at law or in equity, at its option and without notice to Buyer, exercise one or more of the following remedies: (1) declare immediately due and payable all outstanding invoices under this or any other contract and demand or, without demand, sue for amounts then due or thereafter accruing under the invoice or under any other invoice, bill or other document evidencing Buyer’s indebtedness to Seller, (2) suspend deliveries as to any or all Products, (3) to the extent permitted by law, take possession of the Products wherever found and for this purpose enter upon any premises of Buyer and remove the Products, without court order or other process of law, without any liability for damages, suit, action or other proceeding by Buyer as a result of such entry and/or removal, (4) cause Buyer, at its expense, to promptly return the Products to Seller in good, like-new condition, (5) sell the Products, or any part thereof at public or private sale (for cash or credit) at such time or times as Seller shall determine, free and clear of any rights of Buyer, and if notice thereof is required by law, any notice in writing of any such sale by Seller to Buyer not less than ten days prior to the date thereof shall constitute reasonable notice thereof to Buyer, and (6) exercise any and all rights accruing to Seller under any applicable contract or law, including all rights and remedies accorded to sellers and secured parties under the Uniform Commercial Code. In the event of any default on the part of Buyer hereunder, Buyer shall pay any and all collection costs, including reasonable attorneys’ fees and costs, incurred by Seller. No right or remedy conferred upon or reserved to Seller by this agreement shall be exclusive of any other right or remedy provided herein or by law. All rights or remedies conferred upon Seller by this agreement and by law shall be cumulative and in addition to any other right or remedy available to Seller.

10. This Website and its contents are provided for your convenience only. Although Phonewire has attempted to provide accurate information on this Website, it assumes no obligation or responsibility regarding the accuracy of the information whatsoever. Phonewire may change the contents available on this Website or the products mentioned at any time without notice. All information provided on this website is provided on “as is” basis without warranties, guarantees or representations of any kind. Phonewire hereby expressly disclaims, to the fullest extent permitted by law, all express, implied, statutory or other warranties, guarantees or representations, including but not limited to, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement.

11.  Links to Third Parties. Although links to third party Websites may be contained in this Website for your convenience, Phonewire shall not be responsible for any content of any such Websites. You might need to review and agree to applicable rules of use when using such Websites. In addition, a link to third-party Website does not imply that Phonewire endorses the site or the products or services referenced therein.

12. Confidential and Proprietary Information. Each party acknowledges that all non-public information, disclosed as a result of performance of these terms and conditions whether tangible or intangible shall be deemed “Confidential and Proprietary Information”. Each party agrees not to disclose or use such information except in connection with these terms and conditions or as required by law. Each party agrees to notify the other part of any subpoena or court order compelling disclosure of information.

13. Indemnification. Buyer agrees to indemnify and hold Seller and their officers, directors, servants, employees, agents and advisors harmless from and against any and all claims, damages, costs, expenses (including, but not limited to, reasonable attorneys’ fees and costs) or liabilities that may result, in whole or in part, from any third party using the Products provided under this agreement. Any defense provided hereunder shall be by counsel of Seller’s choice.

14. Limitation of Liability. In the event that a Product’s malfunction leads to damage or injuries to the Products, to Buyer’s business, the end-user’s business, to other equipment, or residence, or to employees or to other persons, Seller shall not be liable for such damages or injuries. Notwithstanding the foregoing, Buyer understands and agrees that if Seller is found liable for any loss or damage, Seller’s liability shall be limited to the price paid for such Products, and this liability shall be exclusive. Buyer understands and agrees that the provisions or this section shall apply if loss or damage, irrespective of cause or origin, results directly or indirectly to persons or property, from performance or non-performance of any of Seller’s obligations or from negligence, active or otherwise, of Seller, or its agents, servants, assignees or employees. IN NO EVENT SHALL SELLER BE LIABLE FOR AMOUNTS REPRESENTING INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY, AND HOLD HARMLESS BUYER FROM AND AGAINST ANY OR ALL DAMAGES AND COSTS INCURRED BY BUYER ARISING FROM THE INFRINGEMENT OR VIOLATION OF ANY PATENTS, TRADEMARKS, COPYRIGHTS OR OTHER PROPRIETARY RIGHTS BY ANY PRODUCTS.

15. Neither Phonewire nor any of its affiliates, subsidiaries, directors, agents, employees or other representatives shall be liable for any direct, indirect, special, incidental, consequential, punitive, and/or exemplary damages including without limitation, loss of profits or revenues, loss of data, and/or loss of business, in connection with this Website or the use of or inability to use this Website or reliance on the contents contained herein, even if Phonewire is advised of the possibility of such damages.

16. Phonewire may record and/or monitor incoming or outgoing communication, on any advertised, operated or related telephone numbers of Phonewire, under or in connection with this Agreement, without any such prior notice provided to Customer. Where a recording is made pursuant to this clause, said recording shall be the sole property of Phonewire and evidence the truth of its contents. Customer acknowledges that it shall not be entitled to access, copy, compel delivery or otherwise, any recording whatsoever unless otherwise required by law.

17. This agreement and all rights, obligations and performance hereunder may not be assigned by Buyer without prior written consent of Seller

18. Waiver. No delay or omission by Seller to exercise any right or power shall impair any such right or power or be construed to be a waiver thereof. A waiver by Seller of any term, condition or agreements to be performed by Buyer or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other term, condition or agreement herein contained. No change, waiver, or discharge hereof shall be valid unless presented in writing to Seller and signed by an authorized representative of Seller.

19. Severability. If any section, term, condition or portion of this agreement shall be found to be illegal or void as being against public policy, it shall be stricken and the remainder of this document shall stand as the original.

20. Force Majeure. Seller shall not be liable for failure to perform or delays in performance caused by acts of God; war (declared or undeclared), riot or act of terrorism; fire, explosions or floods; strikes, work stoppages, slow-downs, or other labor difficulties; shortage of vehicles, fuel, power, material or labor; embargo or delay in transportation; accidents; compliance with any order or request by a government agency or official thereof; or any other event or contingency beyond its reasonable control. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be reasonably necessary to enable Seller to perform. Seller, may, during any period of shortage due to any of the above contingencies, allocate its available supply of Goods among itself and its customers in such manner as Seller, in its reasonable judgment, deems fair and equitable.

21. This agreement shall be construed and enforced in accordance with the laws of the State of Missouri without regard to the conflicts of law provisions thereof. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALES OF GOODS, IF OTHERWISE APPLICABLE. All claims, actions, disputes, controversies or suits shall be litigated exclusively in the federal courts in Missouri, or the state or local courts located the County of St. Louis, in the state of Missouri. Each party specifically consents to service of process by and the jurisdiction of and venue in those courts and Buyer, if not a resident of the United States, hereby appoints the Secretary of State of Missouri as its agent for service of process in the United States.

22. The parties intend this agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and thereof, and (b) are binding on the parties hereto, their successors and permitted assigns. No course of prior dealing or usage of trade shall be relevant to amend or interpret this agreement. This agreement may not be changed modified or amended except by an instrument in writing signed by both Seller and Buyer.

All sales made by Phonewire, Inc. (“Seller”) to the Buyer (“Buyer”) are expressly conditioned on Buyer’s acceptance of the following terms and conditions. Seller will not be bound by any terms of Buyer’s Purchase Order or other acknowledgement form that are inconsistent with the terms herein. These terms and conditions may only be amended or waived in writing signed by an authorized representative of Seller. Neither Seller’s commencement or performance nor delivery shall be deemed or construed as acceptance of Buyer’s additional or different terms and conditions.

Order and Order Acceptance

All orders for Products shall be made by written purchase order sent to Seller, or by fax, email, or via the web. All purchase orders shall reference these terms and conditions. No purchase order shall be binding upon Seller until accepted in writing by Seller, and Seller shall have no liability to Buyer with respect to purchase orders that are not accepted. Buyer shall submit purchase orders to Seller in accordance with Seller’s lead times then in effect. Once Seller accepts a purchase order, a Sales Order will be issued.

Requests for Quotes can be sent to Seller by fax, email, or via the web. Seller will issue quotes in writing to Buyer based on current pricing and availability. Quotes are not binding upon the Seller. A quote is not an offer. Phonewire reserves the right to retract any quote for any reason. 

Any and all email communications from phonewire.com are “For discussions purposes only”, shall be considered as a draft, and do not serve as a legally binding contract or agreement or obligation of offer. There is no intention to create a contract except pursuant to a later written agreement. Any terms set forth in any emails are subject to later review and approval by the parties and are non-binding until the signing of a physically executed, formal written agreement by the parties. 

Pricing

All quoted pricing is valid for 30 days from the issuance of quote. If the shipment date of the products is not within 30 days of the date of the Sales Order, all prices set forth herein are subject to adjustment by Seller in accordance with its pricing policies in effect at the time of shipment. The price on the website or in the current catalog supersedes any previous website or catalog pricing. To the extent the price on the website differs from catalog pricing, the price on the website shall prevail. All prices are subject to change without notice.

Sales and Similar Taxes

Quoted pricing does not include any federal, state or local taxes, assessments or duties. Buyer shall promptly pay the amount of any present or future sales, use, or other similar tax (and all applicable interest or penalties) applicable to the sale of the Products hereunder, whether such amount is specified in the Sales Order, subsequently determined or recalculated. In lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to the taxing authorities.

Payment Terms

Unless otherwise specified by Seller, payment terms are Prepaid. Buyer will pay Seller’s reasonable attorneys’ fees incurred in collecting past due amounts owed. Any dispute arising out of or related to the Sales Order shall be brought exclusively in the courts of the State of Missouri, and Missour law should govern the sales transaction. Any balances which are unpaid after thirty (30) days are subject to a one and a half percent (1.5%) interest charge per month, or the maximum amount permissible by law, whichever is greater.

Cancellation

After acceptance by the Seller, the Buyer’s order is not subject to cancellation, change, reduction in amounts, or suspension or delay of shipment, except with the Seller’s written consent. Cancelled orders consented to by the Seller are subject to cancellation charges, based upon all expenses incurred by the Seller up to the time of cancellation. This includes excess inventory of stock items that have been specifically allocated to the Buyer and exceed normal Seller inventory levels for a period. Seller may cancel the order in the following cases: the Seller’s costs have exceeded selling price to Buyer; the Seller is unable to provide product due to factors beyond the Seller’s control.

If shipments are delayed by Buyer, payment shall become due on the date when Seller is prepared to make shipment unless otherwise agreed to in writing by Seller at time of incident. Products held for the Buyer shall be at the risk and expense of the Buyer.

Specifications Provided By the Buyer

Buyer shall indemnify, defend, and hold Seller, and its subsidiaries and affiliates, and their respective officers, directors and employees, harmless from any liabilities and expenses, including reasonable attorneys’ fees, to the extent resulting from a claim alleging that any Product sold by Seller infringes the copyright, trademark, patent, trade secret or other intellectual property right of a third party due to specifications or requirements provided by Buyer.

Changes

Buyer at any time, by a written order, may request changes within the general scope of this contract; however, no changes are effective without written consent of Seller. If any such changes cause an increase or decrease in the cost of, or the time required for, any part of the work hereunder, an equitable adjustment shall be made by Seller by written Sales Order amendment to the price or delivery schedule, or both.

Suspension of Work

Seller agrees to use its best efforts to meet scheduled delivery requirements. Seller shall not be liable for any delay in performance or in the shipment or delivery of goods or for any damages or excess costs suffered by Buyer by reason of such delay, if such delay is beyond the Seller’s and/or the Seller’s subcontractors or suppliers reasonable control. Such causes may include, but are not limited to, the direct or indirect result of, by, or in any manner arising from, fires, floods, epidemics, quarantine restrictions, accidents, civil unrest, war, acts of God, acts of the public enemy, acts of the Government in either its sovereign or contractual capacity, Governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials, supplies, transportation and/or weather delays, or any other cause or causes similar in nature to any of those specified herein. Seller will, within a commercially reasonable time, notify Buyer of any schedule delay.

Delivery, Shipment, and Acceptance

All Products are shipped F.O.B. shipping point or Ex-Works from origin, unless otherwise specified. Buyer is responsible for any loss or damage to shipments after Seller has delivered the Products to any common carrier. Seller shall use reasonable efforts to deliver Products at the times specified in the Sales Order, provided, however, that all delivery dates are estimates and deliveries may be made in installments. All Products delivered will be packaged in accordance with Seller’s standard practice or mutually agreed upon method and include itemized packing slips. Buyer shall accept or reject Products, including “Custom” products, as promptly as feasible, but in any event within thirty (30) days after receipt, for failure to substantially conform to Seller’s published specifications. If Buyer fails to notify Seller in writing of its rejection and reasons thereof within such period, Buyer shall be conclusively deemed to have irrevocably accepted the Products.

  • If the products are manufactured specifically for Buyer (“Custom” order), Seller can deliver between 90% and 110% of the total order quantity of each product being ordered.

LIMITED WARRANTY – IMPORTANT (AS STATED IN SELLER’S WEBSITE):
OTHER THAN AS EXPRESSLY SET FORTH HEREIN OR AS CONTAINED IN ANY EXPRESS WRITTEN WARRANTIES PROVIDED WITH PRODUCTS AT DELIVERY AND TO THE EXTENT PERMITTED BY LAW, THE SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS OF THE PRODUCTS FOR ANY PARTICULAR PURPOSE. SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM THE USE OR PERFORMANCE OF THE PRODUCTS. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ITS CUSTOMERS FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES RESULTING FROM LOSS OF USE, INTERRUPTION OF BUSINESS, OR LOST PROFITS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY TO BUYER AND ITS CUSTOMERS EXCEED THE AMOUNT PAID FOR PRODUCTS PURCHASED UNDER THIS AGREEMENT IN THE PRIOR 6 MONTHS.

IN THE CASE OF CONSUMER BUYERS, THE DURATION OF ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS LIMITED TO THE DURATION OF THE EXPRESS WARRANTIES PROVIDED IN THE APPLICABLE LIMITED WARRANTY.

Notice to Consumer Buyers: Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This warranty gives you specific legal rights, and you may also have other rights which vary from state to state.

SERVICE TERMS OF USE

 

Please read these Terms of Use and the Service Terms and Conditions carefully before opening an account for Services, or otherwise using the Services.  If you do not agree with this Agreement (as defined below), do not use the Services.

This Agreement governs the purchase and use of the Services (as defined below) provided by Phonewire, Inc. (hereinafter “Phonewire” or “Company”). The individual or legal entity opening an account for Service under this Agreement shall be referred to as “Client”.

By using the Services, Client agrees to be bound by this Agreement. Company may modify all or any part of this Agreement with notice to Client by posting the updated terms on the website at www.phonewire.com. Client’s continued use of the Service after changes to this Agreement have been published constitutes acceptance of the updated Agreement. If at any time this Agreement is no longer acceptable, Client should immediately cease all use of the Services.

  1. TERM.  This Agreement will continue so long as Services are installed, accessed, or otherwise used by Client. Either Party may terminate the Agreement or any Services without cause at any time, subject to the below.
  2. SERVICES.  Company shall provide to Client the Services set forth in the Service Terms and Conditions or as available in the on-line portal (each a “Service,” and, collectively, the “Services”) all of which are subject to the terms and conditions of the Terms of Use, the Service Terms and Conditions and any accompanying documentation, as well as any policies that may describe the Service(s) being purchased (the “Agreement”).  All of these form the final written Agreement between Company and the Client.  Services are subject to availability and Company has the right not to accept any order for Service submitted by Client.
  3. SERVICE ORDER PROCEDURE; RATES.
    1. Company will use commercially reasonable efforts to meet Client’s requested service start date(s) and will notify Client if Company does not anticipate that Company can meet any requested service start date(s). Prior to using the Services, Client must submit an order through Company’s on-line portal. Any order for Services not accepted by Company will not be valid and Company will have no liability or other obligations to Client if Client utilizes Service(s). Company’s on-line standard terms will apply and Client will remain obligated to pay for such Service(s) pursuant to this Agreement.
    2. Client will be charged applicable Taxes (as defined below) and Governmental Charges for the jurisdictions in which Service(s) are provided.  Rates are available in the on-line portal or on www.phonewire.com.  Legitimate miscellaneous charges and/or fees imposed by any third party carrier or any underlying provider from time to time, whether charged to or against Company, will be payable by Client, including, without limitation, any cost recovery fee which will represent an accurate and non-inflated recovery of the miscellaneous charges and/or fees to or against Company associated with the provision of Service(s) by Company to Client.  Company will use commercially reasonable efforts to provide to Client information regarding any such miscellaneous charges and/or fees, including, without limitation, prior notice of any such charges and/or fees if reasonably practicable under the circumstances.
  4. PAYMENT.
    1. Unless the Parties expressly agree otherwise, Client shall remit payment for Services and applicable Taxes, fees, administrative assessments, and surcharges in U.S. Dollars prior to any Service being used by the Client. Client agrees that Services shall not be provisioned unless and until sufficient pre-payment is made. Services may be suspended immediately, in Company’s sole discretion, if sufficient pre-payment is not made at any time. It is Client’s responsibility to ensure that sufficient pre-payment is made prior to any use of the Services, and Client agrees that it shall maintain a positive account balance sufficient to cover Client anticipated usage of Services at all times.
    2. Client shall be responsible for accurately providing Company with Client’s valid payment information, including a valid payment method. Unless otherwise agreed, Client shall remit all payments by wire transfer or credit card and Client understands and agrees that processing of Client’s credit card payments may be denied or discontinued by Company at any time and in its sole discretion. Company shall use commercially reasonable efforts to post payments to Client’s account once Company receives notification of the receipt of payment. Client understands that any type of payment may be delayed in posting to Client’s account for Company administrative reasons and agrees that Service may be interrupted due to lack of sufficient positive balance during any such delay.
  5. SECURITY DEPOSIT AND CREDIT LIMITS.  Prior to the initiation of Service and throughout the Term of this Agreement, Company may require Client to provide Company with necessary credit information so that Company may ascertain Client’s commercial creditworthiness.  Company may request, in its sole discretion, for Client to provide a cash deposit (the “Security”) if Company is reasonably concerned about Client’s ability or willingness to pay for Service (including, but not limited to, Client’s failure to maintain sufficient pre-payment, a significant change in Client’s financial condition, or a material increase in Client billings with Company).  Failure by Client to provide Security, any additional Security or other form of Security requested by Company may result in the suspension (and subsequent termination) of Service being provided to Client and termination of this Agreement.  Upon expiration of this Agreement, and after all payments have been made by Client hereunder, any remaining deposit shall be refunded to Client.
  6. SERVICE CHARGES.  Client shall pay to Company, during each month of the Term, no less than the amount of Service charges posted to Client’s on-line account.
    1. Service charges will be deducted from the pre-payment when the Services are consumed.
    2. “Total Service Charges” means all charges, after application of all discounts and credits, for each Service provided to Client, specifically excluding (i) taxes and tax-like charges, (ii) any surcharges; (iii) charges for equipment and colocation; (iv) liabilities incurred by Company as a result of ordering, changing or providing facilities to operate the Services; (v) non-recurring charges; (vi) Governmental Charges (as defined below); and (vii) other charges expressly excluded by the Agreement.
  7. RATES AND CHARGES.
    1. Client shall pay the rates and charges as published on www.phonewire.com or in the Client’s online account, as applicable.
    2. Non-recurring charges will be applied to the ordering, moving, changing, rearranging, installation or disconnection of a Service.
    3. The rates published on www.phonewire.com or in Client’s online account are subject to change.
  8. GOVERNMENTAL CHARGES.  Company may adjust its rates and charges or impose additional rates and charges in order to recover fines and other amounts it is required to pay to others in support of statutory or regulatory programs or is permitted by governmental or quasi-governmental authorities to collect from Clients (“Governmental Charges”).  If the rates and/or charges are adjusted, Company shall provide notice to Client of any such change.  Any change shall become effective beginning on the first day of the next calendar month following notice to the Client, or thereafter, on the first day of the next service billing cycle whenever adjustments are made to rates or charges.  Any Governmental Charge will be charged to Client’s on-line account following the date such Governmental Charges are charged to Company, or later, as the case may be.
  9. TAXES.  In addition to payment for the rates and charges for Service(s), Client is responsible for payment of all sales, use, gross receipts, value added, excise, services, labor-related, consumption, administrative assessments (fee to recover a portion of internal costs and expenses incurred by Company to implement and administer the procurement of certain Services and the compliance with certain legal and regulatory obligations; the administrative assessment is not a tax or a fee required by the government), and other local, state and federal taxes, fees, charges and surcharges, however designated, imposed on or based upon the provision, sale or use of the Services, excluding taxes based on Company’s employees and net income (“Taxes”).  If Client claims that its purchase of the Services is subject to tax exemption, Client must furnish Company with the proper tax exemption certificate as authorized by the appropriate taxing authority, or required by statute or regulation.  If applicable, Company will not collect such tax amounts from Client beginning on the date such certificate is provided.  However, if Company does not collect such amounts in reliance on Client’s tax exemption certificate, which certificate is later determined to be inadequate, then, as between Company and Client, Client shall be liable for such uncollected amounts and for all interest, penalties and additions to tax which are determined to be due with respect to such uncollected amounts.  Company will not issue any credit(s) for applicable taxes, tax-like charges and surcharges assessed prior to its receipt of Client’s evidence of exemption.  Notwithstanding any Client representation that any exemption application is pending, no exemption shall be available to Client until Client presents Company with the valid certificate(s).
  10. BILLING DISPUTES.
    1. If Client disputes charges or application of Taxes, Client must give Company written notice of such dispute within thirty (30) days of the date the charge appeared on Client’s account.  If notice of a dispute is not received by Company within the foregoing thirty (30) day period, such charge shall be deemed to be correct and binding on Client.  To dispute a charge, Client must present to Company a detailed written statement disputing such charges which statement shall include but is not limited to, documents concerning the disputed billing discrepancies, and agrees to negotiate in good faith with Company for the purpose of resolving such dispute within thirty (30) days.  If Client does not pay any or all of the undisputed charges, Company shall have the right to exercise its remedies as described in Section 12 below.  Nothing contained herein shall limit Client’s right to dispute amounts at any time following the thirty (30) day period after the charge appeared on Client’s account, however, Company shall not be obligated to consider any notice of disputed charges that it receives after the said thirty (30) period.
    2. Each Party agrees to negotiate in good faith for the purpose of resolving any properly raised dispute(s) relating to a charge on Client’s account, subject to the following:
      1. if the dispute is mutually agreed upon and resolved in favor of Company, Client agrees that no credit will be due from Company;
      2. if the dispute is mutually agreed upon and resolved in favor of Client, Client will receive a credit for the disputed charges; and
      3. if Company has responded to Client’s dispute in writing and the Parties fail to mutually resolve or settle the dispute within the prescribed thirty (30) day period (unless Company has agreed in writing to extend such period), Client agrees that no credit will be due from Company.
  11. TERMINATION FOR CAUSE. 
    1. Either Party may terminate the Agreement or a Service for cause.  Except for Client’s failure to pay as specifically provided below, “cause” shall mean a material breach of any material provision of the Agreement, and such breach is not cured within thirty (30) days after delivery of written notice from the non-breaching Party. Company shall not be deemed to be in breach of the Agreement for its failure to meet any anticipated service installation or delivery date if such failure is caused, in whole or in part, by (i) a Force Majeure event; (ii) actions by Client or its end users; (iii) construction delays and/or costs; or (iv) inability to install Service(s) in a service location.
    2. If any federal, state or local statute, rule, order, regulation or order by a court of law or regulatory authority, or anything similar to the foregoing effects a change (a “Change in Law”) which has a material adverse impact upon either Party under this Agreement, then the Parties will use reasonable efforts to revise this Agreement so that such Party is no longer impacted in a material adverse fashion and preserves, to the maximum extent possible, the respective positions of the Parties.  If the Parties are unable to agree upon revisions to this Agreement in accordance with the above, then the Party impacted in a material adverse manner shall have the right, at its sole discretion, to cease performance of the obligation(s) that is materially and adversely affected upon prior written notice, and either Party shall have the right to terminate the relevant Service as set forth in this Agreement.
  12. TERMINATION BY COMPANY.
    1. Termination with Notice.  In the event Client fails to maintain sufficient pre-payment, Company may immediately suspend Services.   In addition, if Client disputes a charge, but fails to pay any undisputed amounts within ten (10) days of the default notice, such nonpayment shall be considered “cause” for termination as indicated above and Company may discontinue one or more Services and/or terminate the Agreement.  Upon thirty (30) days written notice, Company may discontinue one or more Services and/or terminate the Agreement if: (i) after Company’s request, Client fails to provide a bond or security deposit; or (ii) if, as determined by Company in good faith, Client provides false information to Company regarding the Client’s identity, creditworthiness, or its planned use of the Services.
    2. Termination or Suspension without Notice.  Company shall have the right to terminate or suspend one or more Services or terminate the Agreement without notice to Client, if in the opinion of Company; (i) the interruption of the Service(s) is necessary to prevent or protect against fraud or otherwise protect Company’s or any of Company’s clients personnel, facilities, or network; (ii) Company has reasonable evidence of Client’s illegal, improper or unauthorized use of the Services; (iii) is required by legal or regulatory authority, or (iv) Client’s insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver or other similar event.
    3. Any termination, disconnection or suspension of Service(s) shall not relieve Client of any liability incurred prior to such termination, disconnection or suspension, or for payment of the unaffected Services and applicable data storage fees and charges.  Company reserves the right to pursue all available legal remedies if it terminates the Agreement or disconnects Service(s) in accordance with this Section.  All terms and conditions of the Agreement shall continue to apply to any Service(s) not so terminated.  If Company terminates a Service(s) in accordance with this Section, and Client wants to restore such Service, Client must remit all past due charges to Company, and may have to pay a reconnection charge and deposit.
  13. TERMINATION BY CLIENT. 
    1. Client may terminate the Agreement and/or any Service pursuant to Section 11 entitled Termination for Cause, or upon Client’s thirty (30) days prior written notice to Company, without incurring termination liability as a result of Company’s breach of any law, rule or regulation that affect’s Client’s use of Services(s) and which breach remains uncured at the end of the notice period.
    2. Disconnect Notice and Service Disconnects. If requested by Client, any requests for disconnection of a Service will be processed by Company in approximately thirty (30) days, and will become effective approximately thirty (30) days after Company receives notice of such request for cancellation.  In order for a Service to be disconnected by Client request, Client must open a ticket in Company’s Client portal and submit a disconnect request through the portal or call Company at 1.855.FLOWROU. Client must provide all information required by Company.  Client’s failure to provide such information may delay or prevent the disconnection. Client is obligated to pay for all Services until disconnection is effectuated.
  14. CONFIDENTIAL INFORMATION. Commencing on the date Client signs up for Services, and continuing for a period of three (3) years following the termination or expiration of this Agreement, each Party shall protect as confidential, and shall not disclose to any third party, any Confidential Information received from the disclosing Party or otherwise discovered by the receiving Party during the Term, including, but not limited to, all pricing, network or other designs, or other information that is marked confidential or bears a marking of like import, or that the disclosing Party states (orally or in writing) is confidential or which under the circumstances surrounding the disclosure, the receiving Party knows or should know is treated as confidential by the disclosing Party, as well as any information relating to the disclosing Party’s technology, business affairs, and marketing or sales plans (collectively the “Confidential Information”).  The Parties shall use Confidential Information only for the purpose of the Agreement.  The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (a) is in the possession of the receiving Party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (b) is or becomes publicly known through no wrongful act or omission of the receiving Party; (c) is received, without restriction, from a third party free to disclose it without obligation to the disclosing Party; (d) is developed, independently, by the receiving Party without reference to the Confidential Information, or (e) is required to be disclosed by law, regulation, court or governmental order.  Client’s data (“Client Data”, which shall also be known and treated by Company as Confidential Information of Client) shall include Client’s data collected, used, processed, stored or generated as the result of the use of the Services. Client has obtained the necessary consent from its employees to provide Company with any employee related Client Data to perform Services pursuant to the Agreement.
  15. DISCLAIMER OF WARRANTIES. Services are provided on an “as is” or “as available” basis.  Company does not warrant that the Service(s) will be without failure, delay, interruption, error, degradation of quality or loss of content, data or information, and except as specifically set forth in the Agreement and any applicable Service Level Agreement, Company makes no other representation or warranties, express or implied, as to any Company Service(s), related products, equipment, software or documentation.  Company specifically disclaims any and all implied warranties; including without limitation any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement of third party rights.
  16. REPRESENTATIONS. Each Party represents and warrants to the other that (a) its performance of this Agreement will not violate any provision of law, rule, regulation and/or regulations of any governmental authority to which such Party is subject (including without limitation, (i) all applicable anti-bribery laws and regulations (e.g., the U.S. Foreign Corrupt Practices Act), (ii) all laws, regulations, codes of practice and guidelines regarding data privacy, telemarketing, do-not-call restrictions and requirements, “slamming”, or deceptive business practices, (iii) all export control laws and regulations (including those promulgated by agencies of the United States Government, including the U.S. Departments of Commerce and Defense), which prohibit the export or diversion of goods to certain prohibited countries, and (b) such Party will comply with all laws, rules and regulations pursuant to which such Party conducts its business. Company may modify or improve Service during the term and may cease or modify Service without liability as reasonably required to comply with changes in law, rule, regulation or policy.
  17. LIMITATION OF LIABILITY.  THE TOTAL LIABILITY OF COMPANY TO CLIENT IN CONNECTION WITH THE AGREEMENT, FOR ANY AND ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, SHALL BE LIMITED TO THE LESSER OF: (A) DIRECT DAMAGES PROVEN BY CLIENT; OR (B) THE AMOUNT PAID BY CLIENT TO COMPANY FOR THE APPLICABLE SERVICE FOR THE ONE (1) MONTH PERIOD PRIOR TO ACCRUAL OF THE MOST RECENT CAUSE OF ACTION.  IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OFFICERS, DIRECTORS OR SHAREHOLDERS BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES ARISING FROM THE PARTIES’ RELATIONSHIP OR CONDUCT OF BUSINESS UNDER THIS AGREEMENT.  FURTHER, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INTERRUPTION OR DEGRADATION OF SERVICES CAUSED BY NETWORK OR FACILITY FAILURE, OR FOR EQUIPMENT, NETWORK OR FACILITY UPGRADE, OR SERVICE, DEVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO COMPANY OR CLIENT.  IN NO EVENT SHALL PHONEWIRE BE LIABLE FOR INTERRUPTION OF CUSTOMER’S BUSINESS, LOST PROFITS, CONSEQUENTIAL DAMAGES, LOSS OR DAMAGE TO CUSTOMER’S PROPERTY, OR ANY OTHER LOSS, INCLUDING BUT NOT LIMITED TO INJURY TO ANY OF CUSTOMER’S EMPLOYEES, AGENTS, OR ANY OTHER PERSON ON CUSTOMER’S PREMISES.
  18. INDEMNIFICATION. 
    1. Each Party will defend, indemnify and hold the other Party, its subsidiaries and affiliates and their respective directors, officers, employees, agents, successors and assigns harmless from and against any and all actual or alleged costs, damages, expenses, losses, and/or liabilities of any kind, including, without limitation, reasonable attorneys’ fees, arising from any action, claim, suit or proceeding commenced by any third party for damages to any tangible property or bodily injury to or death of any person arising out of or caused by the indemnifying Party’s gross negligence or willful misconduct, except for those costs, damages, expenses, losses, and/or liabilities of any kind contributorily caused by any act or omission of the indemnified Party or its directors, officers, employees, agents or unless otherwise specified. In the event a loss, cost, claim, liability, damage or expense to third parties is the result of the fault, in whole or in part, of both Parties, the Parties shall be entitled to indemnification or contribution to the extent permitted by applicable law governing the apportionment, if any, of such loss, cost, claim, liability, damage or expense.  The indemnified Party will promptly notify the indemnifying Party in writing of any such action, claim, suit or proceeding.  The indemnifying Party will control the response to any such action, claim, suit or proceeding and the defense thereof, including, without limitation, any agreement relating to the settlement thereof. The Indemnified Party shall cooperate in every reasonable manner with the defense or settlement or compromise of such claim, demand, or lawsuit.  The indemnifying Party shall keep the indemnified Party reasonably and timely apprised of the status of the claim, demand or lawsuit. The indemnified Party shall have the right to retain its own counsel, at its expense, and participate in but not direct the defense.
    2. In addition to the foregoing general indemnity, Client will at all times defend, indemnify and hold Company, its subsidiaries and affiliates and their respective directors, officers, employees, agents, successors and assigns harmless from all claims arising out of or due to the utilization by any other person or entity to which Client provides any services in connection with or utilizing any Service provided to Client pursuant to this Agreement (including, without limitation, any of Client’s customers and/or end users), including, without limitation, due to (i) the failure of Client or any of Client’s customers and/or end users to comply with any applicable laws; (ii) claims for libel, slander, and/or invasion of privacy; (iii) claims for infringement of copyright and/or trademark; (iv) claims for infringement of patents arising from combining or using services or equipment furnished by BCM One with services and/or equipment furnished by any other person or entity; (v) claims arising from any failure, breakdown, interruption or deterioration of service provided by Company to Client or by Client to Client’s customers and/or end users and (vi) Client’s breach of Section 20 below.
    3. The indemnifying Party shall not be liable under this Section for settlements or compromises by the indemnified Party of any claim, demand, or lawsuit unless the indemnifying Party has approved the settlement or compromise in advance or unless the defense of the claim, demand, or lawsuit has been tendered to the indemnifying Party in writing and the indemnifying Party has failed to promptly undertake and diligently maintain the defense. Neither Party shall accept the terms of a settlement or compromise that involves or references the other Party without the other Party’s written approval, which approval shall not be unreasonably withheld, conditioned, or delayed.
  19. ASSIGNMENT. Neither Party may assign the Agreement or any of its rights thereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, except that (a) Company may assign its rights and/or obligations under the Agreement, (i) to any parent, affiliate or subsidiary, (ii) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all of its assets, or (iii) for purposes of financing; and (b) Client may assign its rights and/or obligations under the Agreement, (i) to its parent, affiliates or subsidiaries, or (ii) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all of its assets, provided that any assignment by Client pursuant to this exception is subject to the following conditions: (a) the proposed assignee satisfies Company’s then current credit and deposit standards; (b) Client has fully paid for all Services through the date of the assignment; and (c) the proposed assignee agrees in writing to be bound by all provisions of the Agreement.  Any assignment in violation of this Section is null and void.
  20. 911 / E911 MATTERS.  CLIENT ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT COMPANY’S VOICE SERVICE IS INTERNET BASED AND THEREFORE 911/E911 SERVICES ARE DIFFERENT FROM TRADITIONAL WIRELINE BASED SERVICES AND ARE OR MAY BE ONLY PROVIDED WITH CERTAIN SERVICES IF SPECIFICALLY DEFINED IN ADDENDUM(S), EXHIBIT(S), SCHEDULES, SERVICE ATTACHMENTS, SERVICE AGREEMENTS, AND ATTACHMENTS TO THIS AGREEMENT, INCLUDING OTHER APPLICABLE ADDENDA, AND APPLICABLE ONLINE TERMS & CONDITIONS, ALL OF WHICH ARE FULLY INCORPORATED HEREIN BY REFERENCE. CLIENT ACKNOWLEDGES AND AGREES THAT NEITHER COMPANY, ITS UNDERLYING CARRIER(S), NOR ANY OTHER THIRD PARTIES INVOLVED IN THE ROUTING, HANDLING, DELIVERY, OR ANSWERING OF EMERGENCY SERVICES OR IN RESPONDING TO EMERGENCY CALLS, NOR THEIR OFFICERS OR EMPLOYEES, MAY BE HELD LIABLE FOR ANY CLAIM, DAMAGE, LOSS, FINE, PENALTY OR COST (INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES) AND CLIENT HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION, ARISING FROM OR RELATING TO THE PROVISION OF ALL TYPES OF EMERGENCY SERVICES TO CLIENT. CLIENT FURTHER AGREES AND ACKNOWLEDGES THAT IT IS INDEMNIFYING AND HOLDING HARMLESS COMPANY FROM ANY CLAIM OR ACTION FOR ANY CALLER PLACING SUCH A CALL WITHOUT REGARD TO WHETHER THE CALLER IS AN EMPLOYEE OR CLIENT OF CLIENT. CLIENT ACKNOWLEDGES AND AGREES THAT ANY INJURY ARISING OUT OF A LACK OF OR MISROUTING OF 911 CALLS, REGARDLESS OF WHETHER THE CALL FAILED OR WAS ROUTED BY A PUBLIC SAFETY ANSWERING POINT OR AN OFFICIAL EMERGENCY OPERATOR, IS NEITHER THE FAULT NOR LIABILITY OF COMPANY AND CLIENT HOLDS COMPANY AND ITS SUBSIDIARIES AND AFFILIATES, AS WELL AS THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES AND AGENTS HARMLESS FROM ANY DAMAGES OR LIABILITIES. THE LIMITATIONS APPLY TO ALL CLAIMS REGARDLESS OF WHETHER THEY ARE BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY OTHER THEORIES OF LIABILITY.
  21. SERVICE MOVES. Service(s) may not be moved from a contracted Service address without written notification from Client to Company.  Should Client fail to notify Company of a service move, then Company, in its sole discretion, may immediately suspend any applicable Service(s) until such time as Company processes a “move order” initiated by Client.  Failure to notify Company of an intended service move may result in Service(s) being 911/E911 non-compliant, if applicable.  Client understands that said failure may cause incorrect routing of emergency services and holds Company harmless from any consequences and claims, all of which rest solely with Client.  Additionally, Client understands that continuation of Service with respect to any existing DIDs may be restricted by the location of the moved service.
  22. USE OF SERVICES. Client is responsible and liable for all use of the Services, with or without its permission.  The Services may not be used for any unlawful, abusive or fraudulent purpose.  Any violation of this Section shall constitute a material breach establishing cause for termination of the Agreement by Company.
  23. UNAUTHORIZED USE OF SERVICES.  Client shall bear the risk of loss arising from any unauthorized or fraudulent use of the Services provided under the Agreement. Company reserves the right, but is not required, to take any and all action it deems appropriate, including blocking access to particular calling numbers or geographic areas, to prevent or terminate any fraud or abuse in connection with the Services or any use thereof.  Client remains responsible for its own network security and security violation response procedures.  Client understands and acknowledges that no Service is guaranteed to ensure Client’s network security or to prevent security incidents, and that Company is not responsible for any unauthorized third party or Client employee access to Client’s facilities and data.
  24. TERMS OF USE.  Client’s use of the Services is subject to the Acceptable Use Policy, Privacy Policy, and CPNI Policy available at www.phonewire.com. Client is responsible for the use of the Services by all end users whom Client permits to use the Services. These policies may be updated from time to time by Company upon notice to all Clients by posting on the website.
  25. DATA PROTECTION. Each Party will comply with any applicable data protection and privacy laws existing in all jurisdictions in which Service is performed (together, the “Data Protection Laws”). The Parties agree provision of the Service may involve the collection, processing, storage or recording of certain “Personal Data” or “Personal Information” (as defined by applicable Data Protection Laws and referred to collectively herein as “Personal Data”) of Client and participants. Where applicable under Data Protection Laws, the Parties acknowledge Company acts as a “Data Processor” in relation to the Personal Data it processes on Client’s behalf and Client remains the “Data Controller” with respect to such Personal Data. Company hereby undertakes that it will (i) use Personal Data only to provide and administer Service as outlined in the applicable privacy statement(s) referenced below; (ii) process the Personal Data in accordance with Client’s instructions; (iii) implement appropriate security measures designed to provide a commercially reasonable level of protection of the Personal Data; (iv) implement and maintain commercially reasonable technical and organizational measures, insofar as is possible, for the fulfillment of Client’s obligations to respond to requests by users of the Service; (v) take commercially reasonable steps to destroy or permanently de-identify Personal Data when it no longer is necessary to retain it; and (vi) ensure that its employees authorized to process Personal Data are bound to appropriate confidentiality obligations. Personal Data may be collected, processed and/or stored by Company or its third-party suppliers in the United States of America, the United Kingdom, the European Union and the rest of the world. Client represents and warrants it has a valid lawful basis for Company to process the end user’s Personal Data in connection with the Services in accordance with applicable Data Protection Laws.
  26. USE OF SOFTWARE. Any software application, including without limitation, the Company portal or other Company website, APIs, and documentation associated with any application as well as any local computer files installed as a result, in each case, provided by or on behalf of Company (“Company Software”), may be used in object code form only and solely by Client for Client’s internal business purposes.  Client may not (a) provide, disclose or make Company Software available to any third party, or (b) decompile, reverse engineer, disassemble, modify, rent, lease, loan, distribute, or create derivative works (as defined by the United States Copyright Act) or improvements (as defined by United State Patent Law) from the Company Software, no license under patents, copyrights, trademarks, service marks, trade names or other indicia of origins or other right is granted to Client in the Company Software or in the Company trademark, copyright, patent, trade secret or other proprietary rights nor shall any such rights be implied or arise by estoppel with respect to any transactions contemplated under the Agreement.
  27. ON-LINE ACCESS; LICENSE; TOOLS AND APPLICATIONS. Client has the sole and exclusive responsibility for the installation, configuration, security (including firewall security), and integrity of all Client facilities, systems, equipment, proxy servers, software, hardware, systems, routing, networks, network addresses and configurations and the like and key contacts for problem escalation (collectively the “Client Systems and Materials”) reasonably required for use in conjunction with or related to the Service and software provided by Company, including, without limitation, Client’s connectivity to any third party. If Company grants Client access, either by online access, by API or access by any other means, to a service ordering/management system and/or any other tools and applications or computer software in connection with the Service or software or the use of any Service or software (collectively, the “Tools and Applications”), the following apply:
    1. Subject to Client’s compliance with this Agreement, Company grants Client a non-exclusive, non-transferable license during the term of this Agreement to use the Service and such Tools and Applications solely in connection with Client’s use of the Service and/or software (as applicable) during the term of the applicable Service. Client will not, directly or indirectly: (i) reverse engineer, decompile, disassemble, translate or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services or the Tools and Applications; (ii) modify, translate or create derivative works based on the Tools and Applications; (iii) rent, lease, distribute, sell, resell, assign, display, host, outsource, disclose or otherwise commercially exploit or otherwise transfer rights to the Tools and Applications or make the Tools and Applications available to any third party; (iv) use the Tools and Applications for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices or labels on any Tools and Applications; or (vi) copy, reproduce, post or transmit any Tools and Applications in any form or by any means, including, without limitation, electronic, mechanical, photocopying, recording or other means. Other than using the Tools and Applications for Client’s internal business purposes, Client may not resell the Tools or Applications or otherwise generate income from the Tools or Applications.
    2. The Tools and Applications are Company’s (or its third-party licensor’s, as applicable) intellectual property. Nothing in this Agreement gives Client any right or license to any of Company’s intellectual property.
    3. Client is fully and exclusively responsible for all information accuracy, charges, costs, transactions, and activities conducted through or with the Tools and Applications. Client is fully and exclusively responsible to safeguard, monitor, manage, and maintain access to the Tools and Applications, and to only allow authorized use of the Tools and Applications to persons that Client designates.
  28. SERVICE MARKS; TRADEMARKS AND PUBLICITY. Client shall not use any service mark or trademark of Company, without prior written consent.  Company shall have the right to disclose Client’s use of the Services in connection with any advertising, promotion, press release or publication.
  29. SERVICE OUTAGES. When Client believes that a loss or material degradation of any Service(s) has occurred (“Service Outage”), Client will first conduct customary problem isolation, resolution and troubleshooting activities.  If Client believes that the Service Outage is attributable to or related to Company or Company’s network, Client will notify Company’s Client Support at help@phonewire.com  (or such other means Company may provide to Client from time to time), by calling 1-800-857-1517 (or any other phone number provided by Company from time to time), or by any electronic tools provided by Company from time to time, to report the Service Outage(s) and initiate an investigation of the cause and remedy of such Service Outage (“Trouble Ticket”).  Once a Trouble Ticket(s) has been opened, Company’s appropriate personnel will initiate diagnostic testing and isolation activities to determine the source and severity of the Service Outage(s) and suggest a remedy to, or enact a remedy on behalf of, Client; Company and Client will cooperate to restore Service(s) as soon as reasonably practicable.
  30. FORCE MAJEURE. If either Party’s performance under the Agreement (excluding the obligation of payment) is prevented, restricted or interfered with by causes beyond its reasonable control including, but not limited to, acts of God, epidemics, pandemics, quarantines, public health emergencies, fire, explosion, vandalism, cable cut by a third party, earthquake, storm or other similar occurrence, any law, order, regulation, direction, action or request of the United States government, or state or local governments, or of any department, agency, commission, court, bureau, corporation or other instrumentality of anyone or more such governments, or of any civil or military authority, or by national emergency, insurrection, riot, terrorism, war, accident, strike, lockout or work stoppage or other labor difficulties, or supplier failure, shortage, breach or delay, then the affected Party shall be excused from such performance on a day-to-day basis to the extent of such restriction or interference.  The affected Party shall use reasonable efforts under the circumstances to avoid or remove such causes of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes are removed or cease.
  31. COMPLIANCE WITH LAWS.  
    1. Each Party (i) will be solely responsible for and will undertake all required action(s) before the Federal Communications Commission (“FCC”), any state Public Utilities Commission, state Public Service Commission or like agency, any other relevant state regulatory agency, any court or any other controlling regulatory bodies, agencies, commissions or other authority, (ii) will obtain any required governmental approval(s), and (iii) will comply with all applicable laws in connection with the Agreement, including all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control.
    2. Client hereby agrees that it will and it will ensure that any of its end users will not violate the Telephone Consumer Protection Act (“TCPA”) pursuant to 47 C.F.R 64.1200 of the FCC and 47 U.S.C 227. Client agrees to indemnify and hold Company, its officers, employees, agents, directors, shareholders, subsidiaries and affiliates harmless from and against any claim, cost, damage, demand, liability, loss, penalty, proceeding or reasonable attorney’s fees imposed upon Company by reason of any claims or damages of whatever nature arising from or relating to any violation of this Section.
    3. Client is solely responsible for compliance related to the manner in which it chooses to use the Service, including transfer and processing of content and the provision of content to any users.
  32. LAW ENFORCEMENT; FRAUD INVESTIGATION RELATED MATTERS.  If Company receives a court order, subpoena, law enforcement request or an industry traceback group fraud-calling inquiry related to the Service provided to Client by Company pursuant to this Agreement, Company will comply with and respond to all court orders, subpoenas, and law enforcement requests or industry traceback requests as it deems necessary, including, without limitation, by referring the applicable requesting parties to Client and disclosing Client information.
  33. THIRD PARTY BENEFICIARIES.  The Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to the Agreement. Notwithstanding the foregoing, a Company underlying service provider may be a third-party beneficiary for sole purpose of enforcing any terms of the Agreement that specifically apply to such Company underlying service provider.
  34. NON-EXCLUSIVE AGREEMENT. This Agreement is not exclusive and nothing in this Agreement will prevent Company from entering into similar arrangements with, or otherwise providing services to, any other person or entity.
  35. GOVERNING LAW; VENUE. All matters arising out of and relating to the Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York without regard to its choice of law principles.  Any action that is or may be commenced by any party pertaining to the Agreement and the subject matter thereof, shall be commenced in a federal or state court located in the county of New York, the State of New York.  The Parties hereby consent to the jurisdiction of such court, waiving objection to forum non conveniens and personal jurisdiction.
  36. NOTICE.  Except for disconnect requests, the process which is outlined in Section 13(b), all notices, requests, or other communications shall be in writing and either transmitted via overnight courier, electronic mail, facsimile, hand delivery, certified or registered mail, postage prepaid and return receipt requested to the Parties at the following addresses.   Notices shall be deemed to have been given when received (or delivery refused).
    To: Phonewire, Inc.
    Phonewire, Inc.
    1111 S Lincoln Ave, Suite 652
    O’Fallon, Illinois 62269
    Attn. Legal Department

    To: Client: At the billing address indicated in the Agreement.

     

    Either Party may change its address by providing notice of such address change to the other Party in the manner set forth above.

  37. INDEPENDENT CONTRACTOR. The Parties are independent contractors. No agency, joint venture, employer-employee or partnership relationship is intended or created under this Agreement. This Agreement benefits Client and Company only; there are no third-party beneficiaries, including any Clients of Client.
  38. NO WAIVER. The failure to enforce any provision or term of the Agreement will not act as a waiver of any right contained in any provision or term in the Agreement.
  39. SEVERABILITY. If any provision under the Terms of Use, Service Terms and Conditions, any addendums, any applicable Service Level Agreement or any other document that becomes part of the Agreement are declared or held to be invalid, illegal or unenforceable, all of the foregoing shall be revised only to the extent necessary to make such provision(s) legal and enforceable, or if impossible, the unaffected portions of either or both shall remain in full force and effect, provided that the modification is consistent with the original intent.
  40. ENTIRE AGREEMENT. The Terms of Use, Service Terms and Conditions, any addendums, any applicable Service Level Agreement (and any attachments, or other documents incorporated therein by reference) constitute the entire agreement with respect to the Services provided pursuant to the Agreement and supersede all other representations, understandings or agreements that are not expressed herein or therein, whether oral or written.
  41. ORDER OF PRECEDENCE.
    1. In the event a conflict between the Terms of Use and the provisions of the Service Terms and Conditions, the Terms of Use will be deemed to govern, unless the Service Terms and Conditions expressly provides otherwise.
    2. If Client orders a Service through the Phonewire service portal or APIs, then Client agrees that any such service offering will be governed by the terms, conditions, and the rates (the “Portal Terms”) specified in the Manage portal.  To the extent there is a conflict between the Portal Terms specified in the Manage portal and this, then the terms of this Agreement will control.

 

SERVICE TERMS AND CONDITIONS

 

In addition to the Terms of Use, Client agrees to the Service Terms and Conditions (the “Terms and Conditions”) with respect to the Services provided by Company as set forth below. Company and Client may be referred to individually as “Party” and collectively as “Parties.”

  1. DEFINITIONS. The following capitalized terms used in these Terms and Conditions shall have the meanings set forth below and shall be equally applicable to both the singular and plural forms unless the context otherwise requires. Unless otherwise specified, all capitalized terms used in these Terms and Conditions shall have the same meaning as defined in the Agreement.
    1. “Affiliate” shall mean any individual, company, corporation, partnership or other entity, directly or indirectly, controlling, controlled by, or under common control with a Party, with control being the ownership or control of at least fifty percent (50%) of the equity or voting rights.
    2. “API” means Application Programming Interface.
    3. “Applicable Law” means any law, regulation, rule, or order, of any government authority applicable to a Party, its business, or the subject matter of these Terms and Conditions.
    4. “Basic 911 Service” (“B911”) means emergency service that does not guarantee that the location and call back number is provided to the local 911 emergency services personnel.
    5. “CPN” means Calling Party Number.
    6. “End User” means any person or entity authorized by Client to utilize, in whole or in part, the Service(s) provided by Company to Client.
    7. “Enhanced E911 Services” (“E911”) means emergency service where the location and the phone number is automatically sent to the applicable PSAP.
    8. “Inappropriate Content” means any content that (i) violates Applicable Law, (ii) violates our Acceptable Use Policy, (iii) is unsolicited, including without limitation, bulk Messages, spam or other unsolicited commercial or other advertising material; (iv) violates any authoritative industry guidelines, including the CTIA SMS/MMS Interoperability Guidelines or other guidelines which Company may send notification to Client or (v) violates any Network Operator requirements, conditions, or codes of practice including but not limited to sending malicious or harmful code, denial of service attacks, or hacking.
    9. “Interstate” means calls that originate in one state and terminate outside that state.
    10. “Intrastate” means calls that originate and terminate within the same state.
    11. “IP” means Internet Protocol.
    12. “LNP” means local number portability.
    13. “Location Routing Number” (“LRN”) means in the United States, a ten (10) digit number in a database called a Service Control Point (“SCP”) that identifies a switching port for a local telephone exchange.
    14. “Message(s)” means to make contacts via messages using Multimedia Messaging Services (“MMS”) and Short Message Service (“SMS”).
    15. “MRC” means monthly recurring charges.
    16. “Network Operator” means any mobile network operator, wireless service provider, wireless carrier, cellular company, third party operator or user of a communications network to and from which Company or Company’s underlying providers can directly transmit and receive Messages.
    17. “North American Number Plan (“NANP”) Termination Traffic” means all Client egress traffic to country code one (1) excluding toll-free termination traffic.
    18. “NPA-NXX” means the first six digits of a phone number, or prefix as derived from the North American Number Plan. The area code is the first three digits and delineates a toll area in the U.S., Canada, and Mexico. The area code is also referred to as a Number Plan Area (“NPA”). NXX refers to the exchange, which is the three (3) digits following the area code.
    19. “NRC” means non-recurring charges.
    20. “Operating Company Number” (“OCN”) means a numeric identity assigned to carriers in order to distinguish routing data.
    21. “PSTN” means public switched telephone network.
    22. “Public-Safety Answering Point” sometimes called “Public-Safety Access Point” (“PSAP”) means a call center in Canada and the United States responsible for answering calls to an emergency Telephone Number (“TN”) for police, firefighting, and ambulance service.
    23. “SIP” means Session Initiation Protocol, a signaling protocol used between VoIP networks to establish, control and terminate voice calls.
    24. “Unsolicited Traffic” is defined as Messages which are sent on an unsolicited basis to a recipient of the Message and which contain content embedded in the sender field or linked or attached in any way and which is relating to marketing information or other commercial or non-commercial information (so called Spam) that has not been requested by the end user receiver.
    25. “VoIP” means Voice over IP.
  2. RESALE OF SERVICES.
    1. Client may resell or remarket the Services, under its own branding, to End Users of the Services (each action a “Resale”). Any Resale by an End User is strictly prohibited.
    2. In connection with any Resale, Client shall: (i) be the primary point of contact for its End Users (ii) be solely responsible for use of the Services by any End User; (iii) not make any representation, warranty or covenant or otherwise make any commitment to the End User on behalf of Company; (iv) be solely responsible for ensuring compliance by its End Users of all Applicable Laws and terms of the Agreement; (v) be solely responsible for billing and collection (including bad debt), including reporting and remitting all applicable Taxes and Surcharges.
    3. Company will not incur any liability to Client’s End Users for its performance under the Agreement.
    4. Client acknowledges that Company may, upon End User request, provide Service(s) directly to such End User similar to those offered to Client under the Agreement.
    5. If Company discontinues providing a Service to Client for any reason, Client will be solely responsible for furnishing any required notice to its affected End Users.
    6. Client is solely responsible for obtaining and maintaining, at its expense, all licenses, approvals, and regulatory authority for its use and operation of the Services. Client agrees to furnish any such documentation to Company upon reasonable request.
  3. SERVICE LIMITATIONS.
    1. Client acknowledges and agrees that the Services are subject to continued availability.  Client further acknowledges and agrees that Company may elect not to offer a Service in or to any particular jurisdiction, location or country, or may block Services to or from any particular jurisdiction, location or country in Company’s sole reasonable discretion.
    2. Client acknowledges and agrees the Service: (i) is not intended to replace an End User’s primary phone service, such as traditional landline or mobile phone service; (ii) may not be compatible with all communication equipment; (iii) may be subject to different regulatory treatment than other similar services, which may affect End Users’ rights and obligations before regulatory agencies and other governmental bodies.
  4. PROHIBITED TRAFFIC. 
    1. Client shall only send calls and traffic which originated via IP. Company may terminate the Service immediately and without notice if Client causes, transmits or routes any non-IP originated traffic to Company’s platform. Client may be charged additional fees for sending prohibited traffic to Company’s platform.
    2. Neither Client nor an End User may route, request, or permit the routing of any toll-free (8XX) calls or traffic to or in conjunction with any ports, DID, or POTS numbers assigned by Company, or use or permit the use of any other call routing method that would cause the originating carrier to bill Company, without Company’s prior written consent. Any violation of the foregoing may result in immediate termination of the Service as well as Client’s liability for any charges billed to Company by an originating or transiting carrier.  If the traffic is identified as payphone originated traffic, applicable payphone surcharges shall apply.
  5. FRAUDLENT TRAFFIC. Client and/or Client’s End Users are prohibited from participating in or assisting with any fraudulent usage. If Client suspects, knows, or should have known of any fraudulent usage, Client must immediately stop all fraudulent usage and notify Company at help@phonewire.com with “Fraud Traffic” in the subject line. If Company becomes aware of unusual usage volumes or patterns, Company will make commercially reasonable attempts to notify Client; provided, however, Company shall have no obligation to notify Client of any such volumes or patterns. Company’s sole obligation to Client with respect to any actual, alleged or suspected fraudulent usage will be to reasonably cooperate with Client, upon Client’s request. Notwithstanding anything to the contrary, Client is and will remain solely responsible for any and all usage, fraudulent or otherwise.
  6. TRAFFIC FORECAST. Client agrees that Company’s performance may be dependent upon Client’s forecasts and projections. Company may request Client to identify traffic volumes for Service. If requested, Client agrees to provide Company with good faith non-binding forecasts of Client’s expected monthly traffic volume and geographic distribution at least thirty (30) days prior to the forecasted period. Forecasts must be updated upon request or if inaccurate.
  7. CHANGES TO SERVICE. Company may modify, alter, change or improve any or all the Services. If any Service is changed in a way that prevents Client from using the Service, then Company will work with Client to identify and use reasonable efforts to implement the best migration path away from such Service and into other Services that Company can make available to Client.
  8. MAINTENANCE OF SERVICE; REGULATION. Client agrees to provide and maintain systems and materials reasonably required by Company to perform the Services, including as applicable, but not limited to: Client or third-party databases; Client or third-party software, hardware, systems, routing and network addresses and configurations; and key contacts for problem escalation (collectively the “Client Systems and Materials”).  Company shall not be liable hereunder relating to the Client Systems and Materials including the failure by Client to timely provide the Client Systems and Materials.
  9. INTERCONNECTION 
    1. Client shall connect to Company’s platform in a manner and at locations determined by Company. Client will, at Client’s sole cost, be responsible for providing all equipment (including proxy servers), software, facilities and IP connectivity including, without limitation, connectivity to Client or Client’s End Users.
    2. The Parties intend that the provision of Services shall commence as soon as reasonably practical. If applicable, Client and Company will reasonably cooperate with each other to test to ensure interoperability between their networks and systems. All necessary interoperability testing will be completed within a reasonable time period.
    3. The Parties will communicate as reasonably necessary to isolate and repair any problems in their respective networks; provided, however, each Party will remain solely responsible for any costs or liabilities incurred in connection with the repair of any problem with respect to such Party’s network.
  10. ACCESS CONTROL
    1. Authentications. Client shall ensure that all Client personnel having access to the systems are authenticated by using user IDs and passwords or by strong authentication mechanisms.
    2. In addition to Company’s obligation to protect personal information as outlined in Company’s Privacy Policy, if Client contacts Company and claims that it is entitled to access to an account, website, or domain registered with Company but is without access (for any reason including but not limited to forgotten password or forgotten user name, data loss or corruption on personal computer, improperly locked out, etc.), Company will provide access, subject to such person providing Company with acceptable evidence of the following:
      1. Name of the person who originally registered (if needed)
      2. Email address of the person who originally registered (if needed)
      3. Proof of payment method (mandatory)
      4. Business license showing the name of the business on the service account with Company (if needed)
      5. Photo ID of the person claiming ownership of the account (mandatory)
      6. Proof of established service address (mandatory).
    3. The information required in Section 10(b) above must be provided in full in order for Company to change the e-mail address on Client’s account with Company.  In addition, if needed, Company will reasonably attempt to contact the owner of the account in accordance with the below guidelines:
      1. If Company contacts the current account owner of record within 10-business days, provides account login details, and confirms that they do not want to change ownership, Company will not grant access to the person claiming ownership of the account.
      2. If the current owner is contacted, but cannot provide mandatory Client account information, then Company will grant access to the person claiming ownership of the account.
      3. If the current owner cannot be reached after two attempts within 10-business days, Company will grant access to the person claiming ownership of the account.
  11. MESSAGING SERVICE 
    1. Company may provide SMS and MMS (collectively “Messaging Service”) for Client to transmit Messages to and from Network Operators with which Company has established connectivity.
    2. Company shall have no obligation to transmit or receive Messages to or from a Network Operator with which Company does not have established connectivity.
    3. Company is not responsible, and shall have no liability, for any failed or delayed delivery of any Messages due to the acts or omissions of any third party, or due to the functionality, lack of functionality or malfunction of any network or equipment not within Company’s direct control.
    4. Client is charged for each segment of Message received by Company from Client, or a segment of a Message addressed to Client that arrives at Company from another network, regardless of whether the message reaches the intended recipient.
    5. All Messages are subject to Network Operator policies and conditions, including without limitation regarding maximum message length and technical formatting. Company reserves the right to segment, truncate, or otherwise reduce the length of any Message, to alter the technical characteristics of any Message, or to refuse to transmit and/or deliver a Message that does not comply with a Network Operator’s policies or conditions in accordance with the parameters specified in Section 11(h) below.
    6. In the event at any time Company determines that it cannot, for technical or commercial reasons, provide Messaging Service based on any technical requirements or specifications Client might request or demand, Company shall have no liability of any kind for declining to accommodate Client’s request or demand or for declining to continue to provide any such Messaging Service if Company determines that Client’s demand or request renders continued provision of such Messaging Service technically impractical or infeasible or commercially unreasonable.
    7. Any source used to originate any Message that is delivered by Client to Company for the transmission of two-way messaging must be assigned a lawful TN and Client shall only use the Messaging Service for two-way communication, and permit such Messaging Service to be used, based on lawfully assigned TNs. Company shall automatically assume, and rely on the forgoing obligation of Client, that TNs provided by Client to Company have been lawfully obtained.
    8. A Message must contain (in addition to other parameters) the originating address, a destination address, and Message body (or media URL for MMS, as applicable) for Company to deliver a Message to the Network Operator. The originating address must be a valid and working TN for which Client is the owner/assignee of the TN or for which the TN owner/assignee has given permission to Client to enable for Messaging Service and the owner/assignee of the TN has been verified by Client.
    9. Client shall not bundle, aggregate or otherwise combine in any way any Messages originating from any TN with any Messages originating from any other TN, it being understood and agreed that each single unique TN shall only and exclusively be used for, including without limitation any and all billing and reporting purposes with respect to, Messages originating from, and terminating to, such single, unique TN.
    10. Client’s use of any Messaging Service shall (i) comply with Applicable Law, (ii) not involve the transmission, or facilitating the transmission, of any Inappropriate Content, and (iii) not include any Messages that originate from any source that is not, or has not been, assigned a TN within the NANP.
    11. Client shall under no circumstances send Unsolicited Traffic to any network platform and shall take every measure at its disposal to prevent the sending of such Unsolicited Traffic.
    12. Client shall comply with the CTIA Messaging Principles and Best Practices (the “CTIA Requirements”) that are acceptable to person-to-person (“P2P”) and application-to-person (“A2P”) SMS traffic. In the event the SMS traffic does not comply with the CTIA Requirements, then the SMS traffic may be blocked by a downstream carrier. Client can find the CTIA Requirements on the CTIA website at www.ctia.org.
    13. Client acknowledges that Company or Company’s underlying providers do not own the database information contained in the SMS routing database, and Client releases and holds Company harmless from any damages Client sustains by reason of Messages being delivered incorrectly or not at all. Client acknowledges that the data is only as accurate as the data that exists in the applicable records as input by service providers and providers of telecommunications related services. Therefore, Client agrees Company shall not be liable for inaccuracies in the processing of Messaging Services provided to Client or its End Users.
    14. Client agrees and acknowledges the content of Message(s) is not stored by Company and is permanently deleted from all Company storage media within 120 days of the Message date. Client is fully responsible for the storage of Message(s) content according with Applicable Law.
    15. Client represents and warrants that: (i) Client is solely responsible for the Messages; (ii) Client has the legal right to send all Messages to the recipients (including obtaining any required consents from the recipients); (iii) the content, timing and purpose of all Messages, campaigns and programs are in compliance with all laws, rules and regulations; (iv) Client is the sender of all Messages, and Company is merely acting at Client’s direction as the transmitter of the Messages; (v) Company’s  transmission of the Messages will not violate the rights of any third party or any law, rule or regulation; (vi) Client has prior express consent to contact each wireless number delivered by Client to Company  in connection with the provision of Service; (vii) in the case of a wireless phone number, the intended recipient is the current subscriber to, or the non-subscriber customary user of, the wireless phone number; and (viii) Client has, unless an exemption applies, obtained from the recipient of any solicitation Message an express written agreement that meets the requirements set forth in Section 310.4(b)(1)(v)(A) of the FTC’s Telemarketing Sales Rule and Section 64.1200(f)(8) of the FCC’s Telephone Consumer Protection Act Rules. Client may use the Service to transmit Client Content or direct Company to make contacts via any channel to, or with, recipients to transmit Client Content.  Where Company reasonably believes Client may not have complied with the provisions of this Section, Company may, at its option, scrub all numbers against any appropriate database deemed necessary to remove all wireless numbers and/or temporarily suspend Service related to the compliance concern. Upon request by Company, Client will promptly provide, in writing, proof of prior express consent and Client’s process for consent management. Client is responsible for all uses of the Service in association with its accounts whether or not authorized by it including unintended usage due to holidays, daylight savings, computer clock errors or similar circumstances. Client acknowledges and agrees Company does not control nor monitor Client Content nor guarantee the accuracy, integrity, security, or quality of Client Content. Use of recording may subject Client to laws or regulations and Client is solely responsible for and obligated to provide any required notification to those being recorded.  Client shall indemnify, defend and hold Company, its affiliates and their officers, directors, employees and agents harmless from and against any and all claims of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from Company following Client’s instructions in sending the Messages or Client’s breach of any representation and warranty set forth in this Section.
    16. All applicable MRC, NRC, and ancillary rates for the Service is pursuant to the rates specified in the Company’s on-line portal which is incorporated by reference. Company reserves the right, in its sole discretion, to change the rates with seven (7) days prior notice to Client. Further, if at any time a Network Operator or other third party changes the transit fee on phone numbers then (i) Company shall pass through such fees to Client at cost, (ii) Company shall promptly notify Client of any such change to transit fees following Company’s receipt of such change, and (iii) Client will have the right to terminate the Messaging Service at any time within ninety (90) days following receipt of such notice of transit fee change.
  12. INBOUND TOLL-FREE SERVICE 
    1. Company will originate Client’s toll-free voice traffic (e.g., 8XX, or calls with the following NPA: 800/888/877/866/855/844 or all open toll-free codes) within the NANP as defined in the Local Exchange Routing Guide (“LERG”), as ordered by Client and deliver such traffic to Client over an IP connection in SIP format (the “Toll-Free Service”).
    2. Company will provide Client with the proper signaling information for each call, including originating CPN (a/k/a ANI), but only to the extent technically feasible, allowed by law and when such information is provided to Company in the call flow.
    3. Client is strictly prohibited from using the Toll-Free Service for (i) mass calling events; and (ii) excessive non-completed and invalid calls and failed calls due to inadequate Client facilities (collectively, “Improper Calls”).
    4. Company will make available to Client CDRs through its portal or APIs. The CDRs are confidential; thus, the Parties shall take all necessary measures to protect the CDRs from disclosure to or by unauthorized parties.
    5. Client acknowledges and agrees that Company will act as the Responsible Organization (the “RespOrg”) and manage and administer Client’s toll-free TNs in the 800 Service Management System database (the “SMS/800 Database”), provided that Client signs a letter of agency (”LOA”) designating Company as the RespOrg for each toll-free TN.
    6. Company shall comply with the regulations applicable to the provision of SMS functions and support services for toll-free TNs as promulgated or issued in accordance with TARIFF F.C.C. NO. 1.
    7. Company is not liable for; (i) any act or omission of the Number Administration and Service Center (the “NASC”), or (ii) by reason of errors made by NASC in connection with the SMS/800 Database.
    8. All usage, MRCs, NRCs, and call billing increments relating to the Toll-Free Service will be specified on Company’s on-line portal.
    9. Company reserves the right to modify the rates for Toll-Free Service with seven (7) calendar days prior written notice to Client. Modification in rates may be in the form of new rates, charges and/or surcharges or through modification of existing rate elements which are used to determine the rates, including call billing increments. Rate changes shall be provided by Company via electronic notification in the form of electronic mail or posting to Company’s on-line portal.
    10. Company shall assess Client a payphone surcharge, when applicable, for all toll-free call attempts that originate from payphones that are delivered to the Company platform at Company’s applicable rate. Payphone calls are defined as calls with calling classes of; 07[restricted station], 25[Pay station (POTS routed)], 27[Payphone (BOCOT/Network)], 29[Prison/Inmate], 70[Payphone (COCOT/smart].
    11. In the event any TN supported by Company’s platform is transferred to another service provider, Client agrees that until the TN is fully transferred from Company to another service provider and no further traffic for such TN traverses Company’s platform, Client shall remain bound by the terms of the Toll-Free Service.
  13. VOICE TERMINATION SERVICE
    1. Voice Termination is a service that allows the Client to route traffic it originated within the NANP to Company’s platform for call completion within the NANP territories and International Countries (the “Voice Termination Service”).
    2. All usage, MRCs, NRCs, and call billing increments relating to the Service will be specified on Company’s on-line portal.
    3. Charges for traffic will be the actual conversation minutes of use (“MOUs”) measured from receipt of answer supervision to receipt of disconnect supervision from any source including Company equipment with such time accumulated at the end of the billing period and rounded up to the next whole minute. Each call will be recorded and billed using the minimum duration and increments thereafter, based on the specification for each dial-code or NPA-NXX.
    4. For calls that are terminated within the NANP, if greater than ten percent (10%) (the “Threshold”) of all completed calls within the NANP have a duration of six (6) seconds or less (a “Short Call”) in any given billing cycle, Company will bill an additional fee of $.01 (the “Surcharge”) for each Short Call over the Threshold. The Surcharge is in addition to Client’s per minute usage rates.
    5. Company reserves the right to modify the rates for Voice Termination Service with seven (7) calendar days prior written notice to Client. Modification in rates may be in the form of new rates, charges and/or surcharges or through modification of existing rate elements which are used to determine the rates, including call billing increments.
    6. For the purpose of determining each call’s jurisdiction (Interstate or Intrastate), the Parties acknowledge that the call jurisdiction will be determined on available call stream data. The Parties warrant that they will not delete or modify in any way the call stream data except in the instance to provide missing or otherwise contracted-to-insert data by the originating carrier. For all calls, Interstate or Intrastate call jurisdiction shall be determined on a per call basis, based on the originating ANI and terminating NPA-NXX in the call record. Within the NANP, terminating jurisdictional location will be determined based on the post-dipped LRN of both the originating and the called party numbers’, which will be used to determine call destination for billing purposes. If a call originates and terminates in the same state based on the originating LRN and terminating LRN, then the call will be an Intrastate call and the call shall be billed at the appropriate Intrastate rate. If a call originates and terminates in different states based on the originating and terminating LRN values, then the call will be an Interstate call and the call shall be billed at the appropriate Interstate rate. If the appropriate call jurisdiction data is not available in the call stream, the jurisdiction of these indeterminate calls will be declared to be Intrastate and rated as such. For the purposes of determining originating ANI, the Client is responsible for populating the OLI, M and P bits for SS7 calls and for SIP calls the following SIP header is used: FROM.
    7. Internationally originated traffic, defined as calls that originate outside the NANP with a non-NANP format for the originating ANI, that terminates within the United States, will be rated as Interstate calls only if such traffic adheres to the standards of ITU E.164.  If the information in the fields is non-conforming to E.164 or otherwise unidentifiable the traffic will be declared to be indeterminate and rated as such.
    8. Company will make available, for a period up to one hundred and twenty (120) days past the billing cycle, to Client CDRs through Company’s on-line portal. CDRs are confidential and thus, the Parties shall take all necessary measures to protect from disclosure to or by unauthorized parties.
    9. Company does not guarantee call completion, and the failure to complete any or all calls, regardless of reason in accordance with the Voice Termination Service will not constitute a breach of the Voice Termination Service. If Company cannot terminate a call for Client, then, if possible, Company shall return to Client the call that will permit the Client to route advance the call. Company is not under any obligation to attempt to deliver a call to any destination that is not posted in Company’s on-line portal.
    10. Client will: (i) manage the integrity of the traffic egressing Client’s network, (ii) manage and correct, as necessary, any fraudulent calling patterns or calling patterns perceived as fraudulent that may harm Company’s platform; and (iii) screen and block calls destined to and/or numbers with invalid formats. In the event that Client fails to comply with the requirements described directly above, Company shall have the right to take protective action against Client in order to protect Company’s platform, which protective action may include, without limitation, the temporary blocking of Client’s traffic until the applicable problem is resolved in Company’s reasonable discretion.
    11. Client represents and warrants that it will not intentionally or knowingly alter, modify, delete, re-originate or re-classify any originating calling party information, or other signaling information or call detail (collectively “ANI Masking” or “Spoofing”) in any manner in connection with the transport and origination of traffic to Company. If Company becomes aware of ANI Masking or Spoofing then Company may independently, without notice to Client, take immediate action to suspend the routing of traffic by Client to Company to the/those destination(s) over Company’s platform.
  14. DIRECT INWARD DIALING (“DID”); CNAM; E911
    1. Company will (i) accept traditional telephone calls originating from the PSTN or VoIP destined to Company’s provided TNs, (ii) provide a service which converts such traffic into IP packets, and (iii) deliver such traffic via Company’s VoIP network to Client and/or Client’s End Users via the SIP (the “DID Service”).
    2. The DID numbers may be provided by Company to Client or ported to Company on behalf of Client via LNP. The calls originating from the PSTN are converted to data packets in Company’s IP Network and then delivered to Client through a SIP interconnection.
    3. The DID numbers may be provided by Company to Client (“Native”) or ported to Company on behalf of Client via LNP.
    4. Porting and Native Numbers: In order to obtain the configurations of DID Service described herein, Company must be the operating carrier for the utilized TNs (i.e., utilized TNs must be assigned to Company’s OCN). Company will provide TNs that have been assigned to Company under Company’s OCNs (i.e., Native TN’s).
    5. Client may request Company perform LNP for existing geographically relevant TNs to Company (“Port-In”). Client represents and warrants that it has all rights and authority necessary for any TN Port-In and will provide copies of letters of authority authorizing the same upon Company’s request. Company may receive requests to port a TN currently assigned to Client or to Client’s End User to a third-party provider (“Port-Out”). Company will comply with all requests and will cooperate with the requesting party in performing such porting. Company makes no guarantees regarding the promptness of a Port-In or a Port Out; provided, however, all Port-In or Port-Out activity will be provided consistent with applicable law.
    6. If applicable, Client warrants strict compliance with applicable Federal laws, rules, or regulations and the laws, rules, or regulations of the state in which the DID Service is provided. Client shall indemnify, defend and hold harmless Company from any third-party claim related to or arising out of any Port-In or Port-out activity performed by Company.
    7. Client acknowledges that Company’s conservation of TN’s is promulgated by the FCC, the state Public Utility Commission and the North American Numbering Plan Administration (together the “Regulatory Authority”). In the event a Regulatory Authority mandates Company to return unused TN’s currently assigned to Client, or in the event a TN is unused for more than six (6) consecutive months then Company will provide thirty (30) days written notice to Client, with exception of a possible shorter notice provided when mandated by the Regulatory Authority before reclaiming unused TNs. Client agrees to return to Company all TN’s residing in Client’s pool of numbers on or before the end of such notice period.
    8. The Parties will follow the LNP provisioning process recommended by the North American Number Council (“NANC”) and adopted by the FCC. The Parties agree that they will Port-In and Port-Out numbers in compliance with FCC rules and regulations and industry standards. Client is responsible for obtaining and providing all necessary End User information and authorizations, as required by Applicable Law, prior to the submission to Company of a request to Port-In a TN to Company’s platform. Client shall obtain and provide such information and authorizations in the manner required by Applicable Law, including obtaining and providing a written letter of authorization from the End User, if applicable. Client shall at all times remain liable to Company for any and all lawsuits, claims, demands, penalties, losses, fines, liabilities, damages, and expenses (including attorney’s fees) of any kind and nature resulting from Client’s failure to comply with this sub-Section and with all Laws applicable to the Porting-In of TNs to Company’s platform.
    9. Company will exercise commercially reasonable efforts to gain access to requested TN quantities; provided, however, Company does not guarantee TN availability.
    10. Calling Name (“CNAM”) Storage for Client’s Company TNs (native or ported TNs) will be available to Client as described herein. For the purpose of the following provisions “Query” means any unique access of CNAM services, and “Provider” means Company’s underlying provider of the CNAM services.
    11. The CNAM Storage feature allows the name of the calling party to be delivered to the called party (“CNAM Content”) if the called party’s service provider allows for CNAM delivery.
    12. The CNAM lookup allows the lookup and display of the CNAM information stored in the CNAM Database for incoming calls to Company-provided DIDs.
    13. Client warrants that all CNAM Content transmitted from Client to Company for inclusion in the CNAM Database is accurate and that Client has the right and authority to provide such CNAM Content to Company. Client assumes sole responsibility for the accuracy for all CNAM Content which Client presents to Company for entry in the CNAM Database or External Database (means a database operated by an entity other than Company that contains CNAM Content and to which Company has access).
    14. Client agrees that it shall comply with all applicable privacy and data protection laws, rules, and regulations related to the use of the CNAM services, including information provided to and from the CNAM services.
    15. Client agrees to use the CNAM services only to obtain information on a Query basis and that all Queries to the CNAM services will be primary; that is, except for use of Client’s existing customer information, there will be no Queries with another product or service to obtain information that might be obtained from the CNAM services without first making a Query to the CNAM services.
    16. Client shall not: (i) disassemble, deconstruct, decompile, or otherwise reverse engineer the CNAM services or any other Provider software used with the Provider’s services; (ii) use information obtained from the CNAM service with any technology or in any way to produce a result or functionality of another Provider service; or (iii) use the CNAM services with computer-generated, random information.
    17. Client shall not under any circumstances: (i) use information from the CNAM services to build a database for resale or for access by a third party in competition with the Provider’s services; (ii) allow information from the CNAM services to be used in any way to verify information from a third party that resells data in competition with Provider; or (iii) provide access to or information from the CNAM services to a company that resells data in competition with Provider or to a company that plans to resell to a third party access to the CNAM services or information obtained therefrom.
    18. Except for licensed uses of Provider’s services, Client shall not use the CNAM services in support of any kind of real-time geographic call routing service, which shall be defined as (i) connecting a caller to one location selected from multiple locations based on the geographic location of the caller, or (ii) speaking back or displaying information about locations selected from multiple locations based on the geographic location of the caller while the caller is on the line (e.g., for the routing of a telephone call via a telecommunications network or for providing location information, including displaying maps, calculating distance and direction, and generating direction instructions for two or more points on Earth, over the Internet).
    19. Client shall not, by any means, capture, store, record, cache, use for verification, link to other databases, or otherwise retain the information provided in response to a Query of the CNAM Service, except that End Users of the CNAM services may retain CNAM data delivered by the Provider in the call logs of End Users’ hand-set premise equipment so long as End Users do not use such retained CNAM data in violation of this Section 14(s).
    20. Company makes no warranty, either express or implied, as to the completeness and the accuracy of CNAM Content in the CNAM Database or any External Databases and Company shall have no liability whatsoever for the accuracy or inaccuracy of any CNAM Content. Client shall defend, indemnify, and hold Company harmless from and against all liabilities and costs arising from and all claims by any person based upon any inaccurate CNAM Content which Client delivers to Company for entry or that Client enters directly in the CNAM Database or any External Database.
    21. Client will have access to either B911 E911 (collectively, “Emergency Services”). Client understands that the Emergency Services are provisioned only on domestic TNs within the United States.
    22. For TNs where Client has not subscribed to Company’s Emergency Services, Company may forward an emergency call to an Emergency Call Response Center (“ECRC”) for address verification to provide for call advancement to the appropriate PSAP for an additional fee per each emergency service call.
    23. Client acknowledges that Emergency Services may not be available in the event of a power failure, fraudulent use, failure of Client’s equipment, service outage, or network or Internet congestion or outage, and Client accepts the responsibility of ensuring that it has the means to make emergency calls.  Client also agrees to notify any End Users or potential End Users of the nature and limitations of the Emergency Services as described in this Agreement.  Company will not be liable for any loss or damage (financial or otherwise) where Client fails to do so.
    24. The provision of Emergency Services shall be conditioned on Client providing Company with accurate location data, call back number, valid address, or any other information (“Emergency Call Information”) required by Company to provide the Emergency Services. Client shall provide Emergency Call Information in a timely manner. Client shall update its Emergency Call Information whenever necessary to reflect changes.  The Parties understand and acknowledge that should Client fail to provide any such Emergency Call Information, Company may not be able to provide the Emergency Services, in whole or in part.  Client agrees to release, indemnify and hold Company and all of its Affiliates, subsidiaries, employees, shareholders, agents, vendors, and representatives harmless from any and all claims, damages, suits, costs, charges, or fees (including attorney’s fees and court costs) arising from or related to any claims or liability that may arise from Client’s failure to satisfy this Section 14(x) including resulting from the failure of Client to provide a correct or updated address to Company.
    25. All applicable usage, MRC, NRC, ancillary rates, and call billing increments relating to the Service will be specified on Company’s on-line portal.
    26. Company reserves the right to modify the rates for DID, CNAM, and Emergency Services with seven (7) calendar days prior written notice to Client. Modification in rates may be in the form of new rates, charges and/or surcharges or through modification of existing rate elements which are used to determine the rates, including call billing increments.
  15. PROHIBITED USES. Any use of the Services or Equipment or excessive usage or any other action that causes a disruption in the network integrity of Phonewire or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services at the sole discretion of Phonewire. Customer understands that neither Phonewire nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. Customer agrees that it will not use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the network. Customer agrees and represents that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or make a charge for the Services or the Equipment without the advance express written permission of Phonewire.
  16. PRIVACY. Phonewire utilizes the public Internet and third party networks to provide voice, SMS, data and video communication services. Phonewire cannot guarantee the security of voice, SMS, data and video communications of Customer. Phonewire is committed to respecting a Customer’s privacy. Any
    personally identifiable information will be used only in the context of the Customer’s relationship with Phonewire. Phonewire will not sell, rent, or lease Customers’ personally identifiable information to others. Phonewire will only share the personal data Customer provides with other Phonewire entities and/or business partners that are acting on Phonewire behalf to complete the activities described herein or related activities. However, Phonewire reserves the
    right to use personally identifiable information to investigate and help prevent potentially unlawful activity or anything that threatens either Phonewire or any company affiliated with Phonewire. Moreover, upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, Phonewire may disclose personally identifiable information.
  17. DEFAULT. If Customer fails to pay any amount due to Phonewire, or defaults in any other obligations, then, in addition to all other remedies available to Phonewire by law or equity or under this Agreement, and not in limitation thereof, Phonewire may, until said sum is paid in full, disconnect or disable all or any part of the Services, Software or Equipment or otherwise render it inoperable; cease maintaining or installing the Services, Software or Equipment, or enter Customers premises without liability tor trespass or damages and, with or without notice, take possession of and remove the Services, Software or Equipment. Upon default or cancellation, Customer shall forfeit all sums previously paid on account. Customer shall be, liable for all costs incurred by Phonewire in connection with the enforcement of any of Phonewire’ remedies, plus reasonable attorneys’ fees, Customer is responsible for all payments due hereunder regardless of any claim, setoff defense or counterclaim against Phonewire or any manufacturer. All remedies available to Phonewire shall be cumulative.
  18. ENTIRE AGREEMENT.  These Terms and Conditions, together with the other documents that make up the Agreement, constitute the complete and exclusive understanding and agreement between the Parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous understandings or agreements of the Parties.  By using the Services, Client agrees to be bound by these Terms and Conditions.

 

Import/Export Controls

a)      Seller shall control the disclosure of and access to technical data, information and other items to be delivered under this Sales Order and Buyer acknowledges that certain U.S. export control laws and regulations may apply to the performance of this Sales Order, including but not limited to the International Traffic in Arms Regulations (ITAR) (22 CFR 120, et seq.), the Export Administration Regulations (EAR) (15 CFR 730-774), and regulations of the Bureau of Alcohol, Tobacco, and Firearms (BATF) (27 CFR 447, et seq.) (collectively, the “Export Control Laws”). Buyer shall at all times comply with all applicable Export Control Laws.

b)       Information furnished to Buyer under this Sales Order may contain technical data, as defined in the ITAR Part 120.10 (22 CFR 120.10). Buyer shall not export, disclose, or transfer any such technical data, relating to export controlled items appearing on the U.S. Munitions List (USML) in the ITAR Part 121 (22 CFR 121), to any foreign person (whether in the United States or abroad), as defined in the ITAR Part 120.16 (22 CFR 120.16), without first complying with all relevant requirements of ITAR Parts 120-130 (22 CFR 120-130). This includes, but is not limited to the requirement for obtaining any written export authorization from the U.S. Department of State, Office of Defense Trade Controls (ODTC), or otherwise making and documenting the determination that an ITAR licensing exception or exemption applies, as the case may be. A downloadable copy of the ITAR is accessible at the ODTC website at www.pmddtc.state.gov.

c)       Buyer shall not export, temporarily import, re-export or retransfer any defense articles or export defense services to a foreign person in the U.S. or abroad without complying with all relevant requirements of ITAR Parts 120-130 (22 CFR 120-130), including the requirement to obtain any written export, temporary import or re-export or retransfer authorization from ODTC, or otherwise make and document the determination that an ITAR licensing exception or exemption applies, as the case may be.

d)       Buyer is further advised that if it engages in the United States in the business of either manufacturing or exporting defense articles as defined in ITAR 120.6 (22 CFR 120.6) or defense services as defined in the ITAR Part 120.9 (22 CFR 120.9), then Buyer is required by the ITAR Part 122 (22 CFR 122) to register with the ODTC using forms accessible at the ODTC website at www.pmddtc.state.gov. Manufacturers of defense articles who do not engage in exporting of same must nevertheless register with ODTC. Registration does not by itself confer export rights or privileges, but is generally a precondition to the issuance of any license or other approval by ODTC. Upon request by Seller, Buyer shall provide to Seller adequate proof of such registration or demonstrate that the registration is unnecessary or that an exception or exemption to such registration requirement applies to the Buyer.

e)       In addition to the foregoing ITAR requirements, information furnished to Buyer under this Sales Order may contain technical data, as defined in the EAR Part 772 (15 CFR 772) relating to export controlled items appearing on the Commerce Control List (CCL) in the EAR Part 774 (15 CFR 774). Buyer shall not export out of the U.S. or to a foreign national in the U.S., as defined in the EAR Part 772 (15 CFR 772), any such technical data without complying with all relevant requirements of the EAR Parts 730-774 (15 CFR 730-774), including the requirement to obtain any written export authorization from the U.S. Commerce Department, Bureau of Industry and Security (BIS), or to otherwise make and document the determination that a licensing exception or exemption applies, as the case may be. A downloadable copy of the EAR is accessible at the BIS website at https://www.bis.doc.gov/.

f)       Buyer shall not export out of the U.S., re-export from one foreign country to another foreign country or to a foreign national outside the U.S. any commodities, technology or software (as defined in the EAR Part 772 (15 CFR 772)) without complying with all relevant requirements of the EAR Parts 730-774 (15 CFR 730-774), including the requirement to obtain any written export authorization from BIS, or to otherwise make and document the determination that a licensing exception applies, as the case may be.

g)       Buyer shall not permanently import into the U.S. articles appearing on the BATF U.S. Munitions Import List at 27 CFR 447, Subpart C, without an approved import permit issued by BATF pursuant to 27 CFR Part 447, Subpart E, unless an exception or exemption applies. Additionally, if Buyer is engaged in the business, in the U.S., of importing articles appearing on the U.S. Munitions Import List, Buyer must register with BATF pursuant to 27 CFR Part 447, Subpart D. Downloadable copies of the BATF regulations and forms are accessible at the BATF website at www.atf.gov.

h)       If performance under this Sales Order requires the Buyer to export out of the U.S. machineguns, destructive devices, explosives, and certain other firearms, as defined in 27 CFR Part 479, Subpart B, Buyer shall not export such items out of the U.S. without an approved export permit issued by BATF pursuant to 27 CFR Part 478, Subpart K and 27 CFR Part 479, Subpart H. Buyer shall also obtain all necessary export licenses issued by the ODTC regarding such exports, if applicable.

i)       Notwithstanding anything to the contrary in the foregoing paragraphs, Buyer represents that it has obtained all registrations and licenses necessary to perform this sales transaction. Buyer shall not transfer any export controlled item, technical data, technology, or service, unless the Buyer is registered with appropriate U.S. authorities and obtains all required export licenses, license exceptions, or license exemptions, as applicable.

j)       Buyer hereby represents that neither Buyer nor any parent, subsidiary or affiliate of Buyer is included on any of the restricted party lists maintained by the U.S. Government, including, but not limited to the Specially Designated Nationals List administered by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), Denied Parties List, Unverified List or Entity List maintained by the U.S. Commerce Department’s Bureau of Industry and Security (BIS), or the List of Statutorily Debarred Parties maintained by the U.S. State Department’s Directorate of Defense Trade Controls (collectively, “Restricted Party Lists”). Buyer shall immediately notify the Seller if Buyer, or any parent, subsidiary or affiliate of Buyer becomes listed on any Restricted Party List or if Buyer’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. or non-U.S. government entity or agency.

k)       Buyer hereby indemnifies Seller and shall be responsible for all losses, costs, claims, causes of action, damages, liabilities and expense, including attorney’s fees, all expense of litigation and/or settlement, and court costs, arising from any act or omission of Buyer, its officers, employees, agents, suppliers, or subcontractors at any tier, in the performance of any of its obligations under the foregoing paragraphs.