Terms & Conditions — AuraVoice

TERMS & CONDITIONS

These Terms and Conditions, together with the Order, Pricing Schedule, Use Policies, and any other documents annexed hereto (collectively, the “Agreement”), is made by and between Auravoice (“Company”, “we”, “us” or “our”) and the Reseller identified on the Order (“Reseller” or “you”) (each individually a “Party” and collectively the “Parties”).

We provide services and equipment intended solely for business use, pursuant to the terms and conditions set forth in the Agreement. By signing the Agreement or by using the Services, you (a) accept the Agreement and agree to be legally bound by its terms; and (b) represent and warrant that the person executing the Agreement has the authority to bind you.

These Terms and Conditions are effective as of April 30, 2025.

1. DEFINITIONS

a. “Account Data” means any data or metadata pertaining to you and your Customer(s) account(s) including, without limitation, customer lists, customer contact details, customer payment information, customer login credentials, customer IP address information and other similar data.

b. “Affiliate(s)” means 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.

c. “Customer” means a business who contracts with you for the provision of the Services.

d. “Customer Content” means the content of calls, facsimiles, SMS or MMS messages, voicemails, voice recordings, shared files, conferences, or other communications transmitted or stored through the Services.

e. “End User” means an individual user to whom you or your Customer(s) makes the Services available.

f. “Equipment” means hardware which you acquire from us, our Affiliates, or our authorized vendors for use in connection with the Services.

g. “Intellectual Property Rights” or “IP Rights” means all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (a) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (b) copyrights and copyright registrations, and “moral” rights; (c) the protection of trade and industrial secrets and Confidential Information; (d) other proprietary rights relating to intangible property; (e) trademarks, trade names and service marks; (f) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (g) analogous rights to those set forth above; and (h) divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).

h. “IP” means all intellectual property rights associated with any design, data, specification, know-how, software, device, technique, algorithm, method, discovery or invention, whether or not reduced to practice, relating to any (a) Service, including our work product, (b) result of a Service, (c) joint development, and/or (d) enhancement or improvement to or derivative of any of the foregoing.

i. “Losses” means any allegations, claims, demands, suits, proceedings, liabilities, judgments, awards, losses, damages, physical injury or death, damage to real property, costs or expenses (including reasonable legal fees).

j. “Network” means the network and supporting facilities between and among our physical or virtual data centers or cloud environments under our direct control, up to and including the interconnection point between our network and facilities. The Network does not include the public internet, your or your Customer(s)’ own private network, or the PSTN.

k. “Service(s)” means all services available on our platform(s), including but not limited to desktop software and services, browser and mobile services and features, Unified Communications as a Service (“UCaaS”), SIP trunking, and any additional services that may be offered by us.

l. “Software” means (a) computer programs, written by us or our Affiliates, contractors or other entities, that comprise a series of instructions, rules, routines, or statements, regardless of the media in which recorded, which allow us to deliver the Services and products or to integrate with other systems, people, and services. This includes source code which allows computers, servers, and the like to perform a specific operation or series of operations; and (b) recorded information comprising source code listings, design details, algorithms, processes, flow charts, formulas, and related material that would enable the computer program to be produced, created, operated, installed, or compiled.

m. “Taxes and Fees” means all taxes and fees arising in any jurisdiction imposed on or incident to the provision, sale or use of Service, including but not limited to value-added, consumption, sales, use, gross receipts, foreign withholding (which will be grossed up), excise, access, bypass, ad valorem, franchise or other taxes, fees, duties or surcharges (including regulatory and 911 charges), whether imposed on us or our Affiliates, along with similar charges. Taxes and Fees do not include taxes based on our employees, property and net income.

2. PROVISION OF THE SERVICE

a. General Terms

i. We will provide the Services as described in the Agreement. The Services afford you the ability to support your Customer’s services and products, including but not limited to comprehensive cloud and VoIP-based calling services, plans, and unified communications services, which allow you to configure Services on a customized basis to meet the needs of the Customer.

ii. We may retire Services that become obsolete and replace them with new Services that provide the same or similar functionality, as necessary, upon thirty (30) days’ notice to you.

b. Beta Services: We may, from time to time, offer access to services that are classified as a Beta version. Access to and use of Beta versions may be subject to additional agreements. We make no representations that a Beta version will ever be made generally available and reserve the right to discontinue or modify a Beta version at any time without notice. Beta versions are provided AS IS, may contain bugs, errors or other defects, and your use of a Beta version is at your sole risk.

c. Support: We provide technical support for the Services to you as outlined in our Support Policy (available on our website).

d. Professional Services: Certain Services may require professional services for implementation. If you opt to obtain such services from us, you will enter into a separate Statement of Work or submit a support ticket which will identify the services to be provided and their associated fees and payment terms.

e. Subcontracting: We may provide any of the Services hereunder through any of our Affiliates or subcontractors, provided that we will bear the same degree of responsibility for acts and omissions of those subcontractors acting on our behalf in the performance of our obligations under the Agreement as we would bear if such acts and omissions were performed by us directly.

3. USE OF THE SERVICE

a. Service Requirements: Use of the Service requires one or more compatible devices, internet access, and certain software, and may require obtaining updates or upgrades to such from time to time. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility, and that you are responsible for all Customer equipment, including installation and management thereof. Because use of the Service involves hardware, software, and internet access not controlled by us, you and your Customer’s ability to access and use the Service may be affected by the performance of these items and may not be used as a basis for withholding payments due under the Agreement.

b. Not Responsible for Quality of Service: Uptime of the Services does not guarantee the overall quality of your service to the End User. You and/or your End Users (and not us) are responsible for the quality of the last-mile internet connection, which is primarily determinative of the quality of service the End User will experience.

c. Incompatibility With Certain Broadband Services: We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.

d. Use of Services: You are responsible and liable for all use of the Services, with or without your permission. The Services may not be used for any unlawful, abusive or fraudulent purpose. Additionally, you are responsible for ensuring that all End Users use the Services in compliance with the use policies available on our website (collectively, the “Use Policies”), which are incorporated into and form part of the Agreement. You may not use, or permit the use of, the Services in any way that interferes with the use of the Services by others or with the operation of the Network. You shall defend, indemnify, and hold harmless us and our suppliers, officers, directors, shareholders, agents, Affiliates and employees from and against any claims, liabilities, losses, costs or damages (including reasonable legal fees and costs) arising out of any third-party claim or allegation that, if true, would constitute a violation of the above restrictions. Any violation of this Section shall constitute a material breach of the Agreement and will provide cause for termination of the Agreement.

e. Fraudulent or Illegal Activity:

i. You shall bear the risk of loss arising from any unauthorized or fraudulent use of the Services provided under the Agreement. We reserve the right, but are not required, to take any and all action we deem 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. You are responsible for your own network security and security violation response procedures.

ii. If you become aware that the security of your network, IP address(es), and/or any equipment components have been stolen or “hacked” by an unauthorized third party, you must immediately (a) attempt to stop or disconnect the fraudulent traffic and (b) notify our Support Team by telephone and by email with “Fraud Traffic” in the subject line. When you contact us to report the problem, you must include the account number and a description of the alleged theft or fraudulent use of Services. We reserve the right to immediately suspend any fraudulent or compromised Services. We will not issue credits for any charges resulting from fraudulent or unauthorized use.

iii. If we have reason to believe that you or your Customer(s) has used the Service(s) for an unlawful purpose, we may forward the relevant communication and other information, including your identity or that of your Customer and End User(s), to the appropriate authorities for investigation and prosecution. Appropriate authorities include, without limitation, law enforcement agencies, the Federal Communications Commission (“FCC”), or the industry Traceback Consortium designated by the FCC to trace suspicious calls to their point of origin. You hereby consent to the forwarding of any such communications and information to these authorities, including, as necessary to comply with a lawful request, Confidential Information.

f. Recording Conversations: Some Services provide a function that allows End Users to record conversations, including video calls. The laws regarding notice and other requirements for recorded conversations vary by jurisdiction. We do not warrant that the functionality complies with any such requirements, and you and your Customers are solely responsible for compliance with all applicable laws and regulations when using this feature.

i. Voice Recording: When using voice Services, an End User who chooses to record a call must give the other participants on the call verbal notification that the call is being recorded. If an End User does not consent to being recorded, the End User must leave the call.

ii. Video Recording: When using video Services, End Users will receive a notification (visual or otherwise) when recording is enabled. If an End User does not consent to being recorded, the End User must choose to leave the video call.

g. Account Data Retention: We, and our third-party providers, reserve the right to delete your Account Data (including but not limited to voicemails, call detail records, faxes, data, or files) or other information that is stored through the Services and/or on our or our third-party service providers’ servers or systems, in accordance with our storage policies for the associated service. You agree that we do not have any liability whatsoever as a result of the loss, access, or removal of any such Account Data or other information pursuant to these policies. We advise you to store your important Account Data with a reliable third-party storage provider if you foresee the need for long-term historical data.

h. Additional Services: Sometimes when you use the Service, you may also use a service or purchase goods provided or offered by a third party. Your use of these other services or goods may be subject to separate terms, and you agree that we have no liability or obligation relating to those third-party services or goods.

i. No High-Risk Use: The Service is not designed for or made available for use in hazardous environments requiring fail-safe controls, including, without limitation, operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, or life support or weapons systems. You and your Customers may not use or sell the Service to any End User that falls into any of these high-risk categories.

j. Use by Children Prohibited: Video Services may not be used by anyone under the age of sixteen (16) unless you have entered into a separate agreement with an educational facility. You and your Customers and End Users under the age of sixteen (16) may not create accounts or use the Service without a separate agreement. We may terminate your access to any video Service without warning if we believe that you, your Customer(s) and/or End User(s) are under the age of sixteen (16) or are otherwise ineligible to use the Service.

4. RESELLER OBLIGATIONS

a. General Obligations: You are responsible for performing all tasks necessary and appropriate to provide and maintain the Services for your Customers, except for those tasks specifically identified in the Agreement or any attachment as being our responsibility. Your responsibilities include, but are not limited to: (i) procuring your own internet connection and access, which may be required to use the Services; (ii) marketing the Services; (iii) connecting Customers to the Services provided by you; (iv) servicing such Customers, including but not limited to the provision of technical support to Customers in their use of the Services; (v) installing and managing all Customer equipment, including, without limitation, ATAs, IADs, software-based SIP clients, and other VoIP or network-specific hardware; (vi) providing Customers with appropriate legal and regulatory disclosures and applicable Use Policies; (vii) entering into appropriate contractual arrangements with all Customers, which shall include restrictions related to the Customers’ use of the Services that are at least as stringent as those in the Agreement, and requiring all Customers to agree to such restrictions prior to making the Services available; (viii) billing and collecting payments from Customers, agents or subcontractors; (ix) managing the Software in support of the Services you have sold or agreed to provide to your Customers; and (x) complying with all legal, accounting, and regulatory obligations (including local, state and federal regulatory obligations, and taxes and regulatory fees) associated with your offerings.

b. Support: You are responsible for providing support to your Customers. You will not direct your Customers to contact us for support, and we are not responsible for providing support services to your Customers. In the event that your Customer contacts us directly for support, we will, on the first occasion, redirect the Customer to you and inform you of the attempted contact. Any request made by you for us to speak directly to your Customer may result in professional service fees being charged to you for our time spent assisting that Customer.

c. Provisioning Service: You are solely responsible for provisioning all Services on behalf of or for your Customer. We are not responsible for any errors or improperly provisioned Services, including improperly set taxes, fees, or surcharges. If you improperly provision a Service, you may be improperly invoiced by us. Until such time as you correct the improperly provisioned Services, you will be responsible for all such charges.

d. Unlawful Robocalls: You will engage in due diligence when entering into new service agreements, or renewing existing agreements, with your Customers to ensure that the Network is not used to originate illegal traffic. Subject to Section 14 (Indemnification), you will indemnify us from any and all Losses resulting from illegal traffic originating from any of your Customers. Any breach of this Section will be deemed a material breach of the Agreement.

e. Cooperation with Traceback Requests: If you are acting as an upstream provider originating traffic (an “Originating Provider”) or passing traffic through as a transit provider (a “Transit Provider”), and you receive a request from a traceback administrator authorized by the Traceback Consortium for information about suspicious robocalls sent to a downstream provider (a “Traceback Request”), you agree to respond within twenty-four (24) hours to the Traceback Request in good faith. Your response will indicate whether you are in the call path as the Originating Provider of the calls (i.e., you received the calls from your Customer) or as a Transit Provider (i.e., you received the calls from another voice provider). The response must also identify the source of the calls. You agree to share this information without requiring a subpoena or other formal demand. Any breach of this Section will be deemed a material breach of the Agreement.

5. EQUIPMENT

a. General; Shipping: You may purchase or rent Equipment from us for use with the Services, in accordance with manufacturer guidelines and applicable laws. You will pay all shipping and related charges unless otherwise agreed upon in writing. Equipment purchased or rented through us may be subject to additional terms and conditions, and you agree to be bound by any such terms and conditions, including any third-party terms and conditions. You shall be deemed the importer of Equipment for all purposes and shall be liable for any applicable customs duties, import/export fees, clearance charges, and other Taxes and Fees (including VAT) in connection with international shipments.

b. Warranty: We will pass through to you all warranties that we are expressly authorized by the original supplier to pass through to you.

c. Lost, Stolen, Altered or Broken Equipment: You will not modify the Equipment in any manner without our express written consent and will only use the Equipment in connection with the Services. You will be responsible for all lost, stolen or broken Equipment (except to the extent covered by warranty) and shall promptly notify us of any such loss or theft to prevent unauthorized use of the Equipment.

d. Unsupported Devices: You shall not access or use the Services with any equipment or devices other than supported Equipment without our consent. We shall have no liability whatsoever for your use of the Services with any equipment or device that is not supported by us, even if we have consented to your use of such device. We maintain a list of supported equipment in our knowledge base and documentation.

6. PAYMENT

a. Prices and Charges

i. Unless otherwise specified, all prices are stated in U.S. dollars as set forth in Schedule A of the Order. Schedule A may be updated to include new Services and associated rates for such new Services. If you use a Service for which a particular rate is not identified in Schedule A, the rate applicable to that Service will be as stated on your monthly service bill.

ii. You will be liable for all charges resulting from use of the Services on your account. No set-off, deduction, or cross-collateralization is permitted.

iii. All professional services will be billed at prevailing professional service rates in one (1) hour increments, unless otherwise specified.

iv. We reserve the right to change pricing. We will provide you with at least thirty (30) days’ prior notice of any rate changes unless such rate change is made effective to us on shorter notice by an upstream service provider, in which case we will provide as much notice as is practicable. You will have an opportunity to terminate the applicable Service if we change the price of a Service to which you are subscribed.

v. If changes in applicable law, regulation, rule or order materially affect delivery of a Service, the Parties will negotiate appropriate changes to the Agreement. If the Parties cannot reach agreement within thirty (30) days after our notice to you requesting such renegotiation, we may, on a prospective basis after such thirty (30) day period, pass any increased delivery costs on to you or eliminate Services impacted by the change in law, regulation, rule, or order.

b. Billing and Payment

i. You shall provide a valid credit card or ACH payment authorization, which will be kept on file by us. All amounts due to us will be collected from the credit card or payment method on file. You shall receive an invoice or statement of account detailing the amounts charged for each billing cycle prior to any charges being collected by us. Your termination of our authority to charge a particular payment method does not relieve your responsibility to pay charges due.

ii. Amounts not paid due to a bank decline or other failure shall be due and payable one (1) business day after you have been notified of the declined transaction. A processing fee of seventy-five dollars ($75) will be assessed for any payment transaction that is declined. Any amount not paid by the due date shall be considered past due and subject to a late payment charge equal to the lesser of (a) one and a half percent (1.5%) per month, compounded, or (b) the maximum amount allowed by law. You agree that in the event we are unable to collect amounts owed for the Services, we may take any steps we deem necessary to collect such fees and that you will be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs and attorneys’ fees.

iii. For new accounts, all non-recurring charges for setup and onboarding fees will be due upon signing of the Order.

c. Taxes: In addition to payment of the rates and charges for Service(s), you are responsible for payment of all sales, use, gross receipts, value-added, excise 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 our employees, property and net income.

d. Tax Exemption: If you claim that your purchase of the Services is subject to a tax exemption, you must furnish us with a proper tax exemption certificate as authorized by the appropriate taxing authority or required by statute or regulation. If applicable, we will not collect such tax amounts from you beginning on the date such certificate is provided. However, if we do not collect such tax amounts in reliance on your tax exemption certificate, and that certificate is later determined to be inadequate, then, as between you and us, you shall be liable for such uncollected amounts and for all interest, penalties and additions to tax determined to be due with respect to such uncollected amounts. We will not issue any credit for applicable taxes, tax-like charges and surcharges assessed prior to our receipt of your evidence of exemption. Notwithstanding any representation you make that any exemption application is pending, no exemption shall be available to you until you present us with a valid certificate.

e. Governmental Charges: We may adjust our rates and charges or impose additional rates and charges in order to recover fines or other amounts we are required to pay to others in support of statutory or regulatory programs, or that we are permitted by governmental or quasi-governmental authorities to collect from you (“Governmental Charges”). If our rates or charges are adjusted, we will provide notice to you of any such change. Any such change shall become effective beginning on the first day of the next calendar month following notice to you or, if later, on the first day of your next service billing cycle after the adjustments are made. Any Governmental Charge will be charged on the monthly invoice or statement of account following the date such Governmental Charges are imposed on or billed to us.

f. Enforcement Violations: Policies implemented by us or our third-party providers will be enforced. Violations of these policies may result in action by us or our third-party providers, which may include fines or other amounts that we may be required to pay. Such policies include but are not limited to messaging service policies.

g. Billing Disputes: If you reasonably and in good faith dispute any portion of your monthly invoice or statement of account, you must provide written notice to us within fourteen (14) days of the billing date, identifying the reason for the dispute and the amount being disputed. Your dispute as to any portion of fees will not excuse your obligation to timely pay the undisputed portion of the fees. Upon resolution of the dispute in our favor, you must pay any unpaid amounts within ten (10) days, including any applicable late payment fees.

h. Security Deposit: In the event that your payment method on file is declined three (3) or more times during any ninety (90) day period, we may, at our option, require you to provide a security deposit in an amount sufficient to cover sixty (60) days’ worth of service fees. If we collect a security deposit, we may draw upon the deposit at any time to recover any amounts due and unpaid, and upon notice to you, you shall immediately replenish the deposit to its original value. We do not waive any rights or remedies by drawing upon the deposit to recover overdue or unpaid amounts. If we draw upon the deposit, we may suspend the Services until you replenish the deposit to its original value. If you fail to provide or replenish such security deposit when required, we may immediately suspend the Services and/or terminate the Agreement without further notice or demand.

7. TERM AND AUTOMATIC RENEWAL

The Agreement will commence as of the effective date of the most recent Order and, unless terminated earlier as set forth herein, will continue for the term set forth on the Order (“Initial Term”). The Agreement will automatically renew for additional one (1) year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless a Party gives the other Party written notice of termination of the Agreement at least sixty (60) days prior to the then-current expiration date.

8. SUSPENSION/TERMINATION

a. Termination or Suspension with Notice.

i. Subject to Section 6(g) (Billing Disputes), you shall have ten (10) days from the date of any default notice in which to cure a default in payment. If payment in full is not received by us on or before the tenth (10th) day, we have the right to suspend Service(s), including your access to any portals for adds, deletions or changes in service, without liability, until such time that you have paid all charges, including any late payment charges.

ii. In the event that you do not bring your account current within thirty (30) days from the date of suspension as set forth in (i) above, we may terminate the Agreement with five (5) days’ prior written notice to you.

iii. Additionally, we may, at our discretion, terminate the Agreement if the payment method on file is declined three (3) or more times during any ninety (90) day period and you do not provide a security deposit within five (5) days after receiving a request from us as described in Section 6(h).

iv. If Services are terminated for non-payment, any unposted credits due or prepayments collected for Services will be applied to any outstanding payments due to us.

b. Termination or Suspension without Notice: We have the right to terminate or suspend one or more Services without notice to you if, in our opinion: (i) such action is necessary to prevent or protect against fraud or to otherwise protect our or any of our resellers’ or customers’ personnel, facilities, or network; (ii) we have reasonable evidence of your illegal, improper or unauthorized use of the Services; (iii) we are required to do so by legal or regulatory authority as set forth in Section 18(k) (Regulatory and Legal Changes); or (iv) you experience any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver, or other similar event.

c. Termination for Cause: Either Party may terminate the Agreement and any Services purchased hereunder, in whole or in part, by giving written notice to the other Party if the other Party: (i) breaches any material term of the Agreement and fails to cure such breach within thirty (30) days after receipt of notice of the breach, except that we will have the right to terminate the Agreement without such cure period in the case of your breach of payment obligations; and/or (ii) fails to timely pay all undisputed amounts due for Services rendered under the Agreement.

d. Effect of Termination

i. If you terminate the Agreement in its entirety due to our material breach under Section 8(c) (Termination for Cause), you will be liable for all fees and charges for all Services (including usage-based fees) up through and including the date of termination of the Service(s).

ii. If the Agreement or any Services are terminated for any reason other than as a result of a material breach by us (or a termination by you as set forth in Section 18(k) regarding Regulatory and Legal Changes), you must, to the extent permitted by applicable law and without limiting any of our other rights or remedies, pay within ten (10) calendar days of such termination all amounts that have accrued prior to such termination, as well as all sums remaining unpaid (including but not limited to any monthly minimum commitments) for the Services for the remainder of the then-current Term, plus related Taxes and Fees.

e. Data Retention Upon Suspension/Termination

i. In the event of a suspension of Services for non-payment or other cause, we will not take any action to intentionally erase any Account Data stored on our platform. However, you shall have no rights to access or retrieve stored data while your account is suspended.

ii. In the event of termination of the Agreement, we will not take any action to intentionally erase any Account Data stored on our platform for a period of thirty (30) days after the effective date of termination. After termination, you may request retrieval of Account Data by opening a support ticket with our Support Team. Professional services fees may be charged for any Account Data retrieval requests.

iii. Except as provided above, we shall have no obligation to continue to store Account Data during any period of suspension or after termination, or to permit you to retrieve the same.

9. CONFIDENTIALITY

a. Obligations: Commencing on the Effective Date of the Agreement and continuing for a period of three (3) years following the termination or expiration of the Agreement, each Party shall protect as confidential, and shall not disclose to any third party, any Confidential Information received from the other Party or otherwise discovered by the receiving Party during the Term of the Agreement. Confidential Information includes, but is not limited to, the terms of these Terms and Conditions (and any attachments or amendments), Service Level Agreements, all other documentation made part of the Agreement, all pricing, network or other designs, or other information that is marked confidential 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. Confidential Information also includes any information relating to the disclosing Party’s technology, business affairs, and marketing or sales plans. The Parties shall use Confidential Information only for the purpose of fulfilling their obligations under 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.

b. Return/Destruction of Confidential Information: Confidential Information, including all copies, will be deemed the property of the disclosing Party. The receiving Party will, within twenty (20) days of a written request by the disclosing Party, return all Confidential Information (or any designated portion thereof), including all copies, to the disclosing Party or, if directed by the disclosing Party, destroy such Confidential Information. The receiving Party will also certify in writing that it has satisfied its obligations under this Section.

10. INTELLECTUAL PROPERTY

a. Limited License

i. Subject to, and conditional upon, your compliance with the terms of the Agreement, we grant to you and your Customers a limited, personal, revocable, non-exclusive, non-transferable (other than as permitted under the Agreement), non-sublicensable license to use any Software provided or made available by us as part of the Services, to the extent reasonably required to use the Services as permitted by the Agreement, and only for the duration that you are entitled to use the Services.

ii. You will not, and will not allow your Customers to: (1) sublicense, resell, distribute or assign your rights under the license granted pursuant to the Agreement to any other person or entity; (2) modify, adapt or create derivative works of the Software or any associated documentation; (3) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Software; (4) use the Software for infringement analysis, benchmarking, or for any purpose other than as necessary to use the Services you are authorized to use; (5) create any competing software or services; or (6) remove any copyright or other proprietary or confidential notices on any Software or Services.

b. IP Rights

i. IP Rights: Except as expressly provided in the Agreement, the limited license granted to you under Section 10(a) (Limited License) does not convey any ownership or other rights or licenses, express or implied, in the Services, any related materials, any work product developed in connection with professional services, or in any intellectual property. No IP Rights or other rights or licenses are granted, transferred, or assigned to you, your Customers, or any other party by implication, estoppel, or otherwise. All rights not expressly granted herein are reserved and retained by us and our licensors. You will not allow access to our IP (including, without limitation, Software and systems) by anyone other than your employees and subcontractors who (a) are bound by law or written agreement to comply with the Agreement with respect to IP and Confidential Information, and (b) require such access to assist you in your permitted use thereof. You will return all of our IP to us at the conclusion of the applicable Service. You will cooperate with us to take such actions as are reasonably requested to vest ownership of all such IP in us.

ii. Third Party Rights: The Software and Services may comprise or incorporate services, software, technology or products developed or provided by third parties, including open-source software or code. You acknowledge that misuse of the Services may violate third-party IP Rights.

iii. Reseller Rights: As between the Parties, you retain title to all IP Rights that are owned by you. To the extent reasonably required or desirable for the provision of the Services, you grant to us a limited, personal, non-exclusive, royalty-free license to use your IP Rights. You must provide (and are solely responsible for providing) all required notices and obtaining all licenses, consents, authorizations, or other approvals related to the use, reproduction, transmission, or receipt of any Customer Content that includes personal or Confidential Information or incorporates any third-party IP Rights.

iv. Use of Marks: Reseller shall not use any of our service marks or trademarks without our prior written consent. We shall have the right to disclose Reseller’s name and trademarks in connection with any of our advertising, promotions, press releases or publications.

11. GOVERNMENTAL USERS

If Reseller (or its Customers and/or End Users) is an agency, department, or other entity of any government, then any use, modification, duplication, reproduction, release, performance, display, transfer or disclosure of the Services and accompanying documentation shall be governed solely by the Agreement. Any other use is prohibited, and no other rights are granted.

12. DISCLAIMER OF WARRANTY

THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT WARRANT THAT THE SERVICE(S) WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, OR DEGRADATION OF QUALITY OR LOSS OF CONTENT, DATA, OR INFORMATION, EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT. IN ADDITION, WE MAKE NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE(S), RELATED PRODUCTS, EQUIPMENT, SOFTWARE OR DOCUMENTATION, AND WE SPECIFICALLY DISCLAIM 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. ANY BROADBAND SPEED CLAIMS REPRESENT MAXIMUM DOWNSTREAM and/or UPSTREAM CAPABILITIES, WHICH MAY VARY AND ARE NOT GUARANTEED. FACTORS INCLUDING LINE QUALITY AND A CUSTOMER’S DISTANCE FROM THE EXCHANGE MAY LIMIT AVAILABLE BANDWIDTH.

13. LIMITATION OF LIABILITY

a. Excluded Damages: TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS, OR SHAREHOLDERS, BE LIABLE FOR: (1) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, REPUTATIONAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND; (2) COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (i.e., “cover”); (3) LOSS OF USE, LOSS OR CORRUPTION OF DATA; OR (4) LOSS OF BUSINESS OPPORTUNITIES, PROFITS, GOODWILL, OR SAVINGS. WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN, NEITHER PARTY WILL BE LIABLE FOR THE FOREGOING TYPES OF DAMAGES. FURTHER, NEITHER PARTY WILL BE LIABLE FOR ACTIONS REASONABLY TAKEN TO COMPLY WITH LAW.

b. Direct Damages: EXCEPT AS SET FORTH HEREIN, OUR TOTAL CUMULATIVE LIABILITY UNDER THE AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THE AGREEMENT FOR THE SIX (6) MONTH PERIOD PRIOR TO THE MOST RECENT CAUSE OF ACTION. THIS LIMITATION WILL NOT APPLY TO: (1) YOUR PAYMENT OBLIGATIONS; (2) EITHER PARTY’S LIABILITY AS SET FORTH IN SECTION 13 (LIMITATION OF LIABILITY) HEREOF; (3) YOUR INDEMNIFICATION OBLIGATIONS; (4) EITHER PARTY’S LIABILITY RESULTING FROM GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT; OR (5) YOUR LIABILITY RESULTING FROM USE of THE SERVICES IN BREACH OF THE AGREEMENT. NOTHING IN THE AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH CANNOT BE RESTRICTED, LIMITED, OR EXCLUDED PURSUANT TO APPLICABLE LAW.

c. Third-Party Providers: WE SHALL HAVE NO LIABILITY TO YOU WHATSOEVER FOR THE FAILURE OF ANY OF OUR THIRD-PARTY PROVIDERS TO RENDER SERVICES, OR FOR DEFECTS IN THE QUALITY OF SERVICE PROVIDED BY OUR THIRD-PARTY PROVIDERS. ANY SERVICES RENDERED BY OUR THIRD-PARTY PROVIDERS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. IF OUR THIRD-PARTY PROVIDER(S) CEASE PROVIDING SERVICES TO US OR REVISE THEIR TERMS OF SERVICE, THEN ANY AND ALL OF OUR OBLIGATIONS HEREUNDER SHALL TERMINATE ACCORDINGLY, AT OUR OPTION, AND WE SHALL INCUR NO ASSOCIATED LIABILITY TO YOU.

14. INDEMNIFICATION

a. By Reseller: You hereby agree to indemnify, defend and hold us harmless, and our Affiliates, subsidiaries, directors, officers, agents, suppliers, employees, successors and assigns, from and against any and all Losses arising out of or relating to: (i) your or your Customers’ use of the Services; (ii) Customer Content and/or any third-party information used, maintained or stored in connection with the Services; (iii) your breach of any representation, covenant or warranty contained in the Agreement; (iv) violation of any law by you or any third party arising out of or relating to your actions; or (v) the modification, unauthorized use, or distribution by you or your Customers of the Services or IP.

b. By Company: Subject to the limitations set forth in Section 13 (Limitation of Liability), we shall, during the Term of the Agreement, defend and indemnify (at our expense) any third-party claim or suit brought against you alleging that the Software infringes a U.S. trademark, patent or copyright, and we shall pay all costs and damages finally awarded in such claim or suit. If use of the Software under the terms of the Agreement is, or in our opinion is likely to be, enjoined due to such an infringement claim, then we will, at our sole option and expense, obtain for you the right to continue using the Software, or replace or modify the Software so that it becomes non-infringing. We shall have no liability for any actual or alleged infringement based upon the use of the Software in combination with other products, devices or software not furnished by us, use of the Software not in compliance with our specifications, or modifications made to the Software if the claim or suit of infringement would not have occurred but for such combination, use or modification of the Software. We disclaim all other liability for patent, trade secret, copyright, and other intellectual property rights infringement, including any incidental, special, consequential, and punitive damages. With respect to any claims or actions relating to infringement of intellectual property rights, the remedies set forth in this Section shall be your sole and exclusive remedies.

c. Defense and Indemnification Procedures: Any Party seeking defense or indemnification (the “Indemnified Party”) must provide the Party from whom it seeks such indemnification or defense (the “Indemnifying Party”) with: (i) prompt written notice of the third-party claim, (ii) sole control over the defense and settlement of the third-party claim, and (iii) reasonable information, cooperation, and assistance in connection with the defense and settlement of the third-party claim. The Indemnified Party’s failure to comply with the foregoing obligations will not relieve the Indemnifying Party of its defense or indemnification obligations under this Section 14, except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party will have the right to participate, at its own expense, in the defense of any such third-party claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Party’s express written consent (which consent may not be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Party by the party bringing the third-party claim.

15. DISPUTE RESOLUTION

a. Good Faith Attempt to Settle Disputes: In the event of any dispute or claim arising out of or relating to the Agreement (a “Dispute”), each Party will appoint a duly authorized representative who will, before either Party pursues legal action, confer with the other Party to make a reasonable and good faith effort to settle or otherwise resolve such Dispute. If the Parties are unable to resolve the Dispute within thirty (30) days of initial notification of the Dispute (or such longer period as the Parties may mutually agree), then either Party may invoke arbitration pursuant to subsection (b) below.

b. Arbitration: Any Dispute between the Parties (including disputes arising out of or relating to the Service) will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in the City of Orlando, State of Florida. Each Party shall bear its own costs and expenses, including attorneys’ fees and expenses related to evidence, witnesses and document production, and shall bear an equal share of the arbitrator’s and administrative fees of the arbitration. The arbitrator’s decision will follow the plain meaning of the relevant documents and will be final and binding. Without limiting the foregoing, the Parties agree that no arbitrator has the authority to: (i) award relief in excess of what the Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator may award relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. All claims shall be arbitrated individually. Unless the Parties agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims and may not otherwise preside over any form of a representative or class proceeding. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.

c. Equitable Relief: Any breach of either Party’s IP Rights or confidentiality obligations will cause the non-breaching Party irreparable harm for which monetary damages would be inadequate. In the event of an actual or threatened breach of such obligations, the non-breaching Party may, in addition to other remedies available at law or in equity, seek injunctive or other equitable relief (including specific performance) without the necessity of posting a bond or other security, proving actual damages, or similar requirements, in addition to any other relief to which such Party may be entitled under applicable law.

16. ON-SITE SERVICES

If our personnel perform Services on your premises: (i) you will provide all facilities, access, furnishings, equipment, software, documentation, passwords, and data necessary to perform the Services; (ii) you will maintain adequate security, safety, utilities, and environmental standards consistent with industry standards and your regular practices; (iii) while on your premises, our personnel will comply with your standard rules and regulations, to the extent those rules are consistently applied and have been communicated to us in advance; and (iv) except as otherwise provided, you will reimburse us for our reasonable out-of-pocket expenses incurred in connection with the Services, including travel-related costs.

17. INSURANCE

You are solely responsible for maintaining (and ensuring that you maintain) insurance coverage that is usual, reasonable, and customary for the service you are providing, including without limitation automobile, general liability, and workers’ compensation insurance, as applicable. Upon written request, you will furnish certificates evidencing the foregoing insurance coverage.

18. MISCELLANEOUS

a. Force Majeure: If either Party’s performance under the Agreement or any obligation thereunder (excluding your payment obligations) 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 cuts by third parties, earthquakes, storms or other similar occurrences, any law, order, regulation, direction, action or request of the United States government or any state or local government, or of any department, agency, commission, court, bureau, corporation or other instrumentality of any such government, 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 non-performance and shall resume performance with reasonable dispatch whenever such causes are removed or cease.

b. Notices: Unless otherwise provided in the Agreement, all notices hereunder shall be in writing and transmitted via overnight courier, electronic mail, facsimile, hand delivery, or certified or registered mail (postage prepaid and return receipt requested) to the Parties at the addresses set forth on the Order. Notices shall be deemed given when received (or when delivery is refused). Either Party may change its notice address by providing notice of such address change to the other Party in the manner set forth above.

c. Independent Contractors: The Parties are independent contractors, and nothing herein will be construed otherwise. Each Party alone will determine, supervise, and manage the method, details, and means of performing its obligations. Except as agreed in writing, neither Party will act or attempt to act, or represent itself (directly or by implication) as the other Party’s agent. Each Party will be solely responsible for the withholding and payment of all applicable federal, state, and local taxes for its own employees.

d. Exclusivity and Competition: Nothing in the Agreement shall prohibit us from providing services similar or identical to the Services provided to you hereunder to any other entity or person.

e. Severability; No Waiver: Any provision of the Agreement that is prohibited or unenforceable will be ineffective only to the extent of such prohibition or unenforceability, without invalidating the remaining provisions of the Agreement. No course of dealing or failure of a Party to strictly enforce any term or provision of the Agreement, or to exercise any right, obligation, or option provided hereunder, will waive such term, provision, right, obligation, or option.

f. 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) we may assign our 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 our assets, or (iii) for purposes of financing; and (b) you may assign your rights and/or obligations under the Agreement (i) to your parent, Affiliates or subsidiaries, or (ii) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all of your assets, provided that any assignment by you pursuant to this exception is subject to the following conditions: (1) the proposed assignee satisfies our then-current credit and deposit standards; (2) you have fully paid for all Services through the date of the assignment; (3) the proposed assignee agrees in writing to be bound by all provisions of the Agreement; and (4) the proposed assignee is not a competitor of the Company. Any assignment in violation of this Section is null and void.

g. 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, our underlying service provider(s) may be third-party beneficiaries for the sole purpose of enforcing any terms of the Agreement that specifically apply to such underlying service provider.

h. Internal Customer Activities:

i. We have no obligation to assist in or mediate any dispute between your representatives (or you) and any third party with respect to ownership or control of any account or Account Data. All information in our records regarding the ownership or control of an account or Account Data, Services ordered, and numbers assigned to an account will be definitive and controlling for purposes of administering the account. In the event of such a dispute, we may take any course of action that we deem appropriate based on the information available, which includes declining to take any action.

ii. We may access your account and related data as required to provide the Services. However, we have no obligation to access your account, Account Data or any Customer Content for any purposes not related to delivering the Services. The Services do not include or consist of any investigation, review, verification, production, compilation, modification, or other similar services for any Account Data or Customer Content. The Services do not include the provision of any legal, accounting, or other professional services.

i. Governing Law; Venue: All matters arising out of or relating to the Agreement (including any Schedules, attachments, and additional documentation) shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its choice of law principles. Any action that is or may be commenced by any Party pertaining to the Agreement or its subject matter shall be commenced in a federal or state court located in Orange County, Florida (Orlando). Each Party hereby consents to the jurisdiction of such courts, waiving any objection to forum non conveniens or lack of personal jurisdiction.

j. Export Control: Any services, products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export laws and regulations. You will not use, distribute, transfer, or transmit the services, products, software, or technical information (even if incorporated into other products) except in compliance with all U.S. and other applicable export regulations.

k. Regulatory and Legal Changes: In the event of any change in law or regulation, or an industry-wide change, that would prohibit or otherwise materially interfere with our ability to provide Services under the Agreement, we may terminate the affected Services or the Agreement, or otherwise modify the terms thereof.

l. Laws, Regulations, Permits: Each Party will comply, at its own expense, with all applicable federal, state, county, and local laws, rules, regulations, policies and codes in performing its obligations under the Agreement. Each Party represents that it has obtained or will obtain all consents, licenses, permits and certificates required to receive or perform the Services and to do business in the United States (or any other country in which a Party or its Affiliates sells or uses the Services). If we reasonably believe that continued performance of the Services would cause a violation of any applicable law, statute, ordinance, court order or regulatory agency rule, we may cease performing the applicable Service(s) to the extent reasonably required to correct or avoid the violation. You are responsible for staying informed of all legal requirements related to your use of the Services. For clarity, you are solely responsible for compliance related to the manner in which you or your End Users choose to use the Service, including the transfer and processing of content and the provision of content to any users.

m. Non-Disparagement: During the Term of the Agreement and for a period of one (1) year thereafter, you agree to take no action which is intended, or would reasonably be expected, to (i) harm us or our reputation, or (ii) lead to unwanted or unfavorable publicity for us, including, without limitation, any actions on the internet or any online forums, blogs, or social media. In addition, you may not set up or administer any online forum that relates, directly or indirectly, to us or any of our third-party providers or customers without our express prior written consent.

n. Survival: The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of the Agreement will survive such expiration or termination. This includes, without limitation, payment obligations, warranty disclaimers, indemnities, limitations of liability, confidentiality provisions, definitions, and miscellaneous provisions.

o. Non-Solicitation: During the Term of the Agreement and for a period of twelve (12) months from termination thereof, neither Party shall hire or solicit for employment any employee or contractor of the other Party without the prior written consent of the other Party. However, nothing in these Terms and Conditions shall prohibit: (i) any general solicitation for employment not specifically directed at the other Party’s employees or contractors, or (ii) the employment of any person who has been terminated by the other Party. Nothing in this Section shall relieve either Party’s employee of any duty or obligation arising under a separate non-compete agreement.

p. Order of Precedence: In the event of any conflict between the documents comprising the Agreement, precedence will be given in the following descending order: (i) the Order Form; (ii) the Use Policies; (iii) these Terms and Conditions; and (iv) any other document incorporated by reference into the Agreement which governs the Services. No preprinted or form terms on any purchase order will apply to the Agreement.

q. Entire Agreement: The Agreement, together with any attachment(s) or executed amendments, constitutes the Parties’ entire understanding and supersedes any prior written or oral agreements or understandings related to the subject matter hereof. The Agreement is not enforceable unless properly executed by both Parties (execution may be accomplished by signature on the Order or by your use of the Service, which shall constitute execution of this Agreement). We may modify all or any part of the Agreement by posting the updated terms on our website. (This does not include changes to the Pricing Schedule, which may be modified pursuant to Section 6(a) of these Terms and Conditions.) If you do not accept the changes to the Agreement, you will have the opportunity to terminate the Services. If you do not elect to terminate the Services, such changes will become binding on you. Such amended Agreement will supersede all previously agreed-to electronic and written terms of service, attachments, or other documentation.