THIS END USER SERVICE AGREEMENT (this "Agreement") by and between PanTerra Networks, Inc., a California corporation ("Company"), and customer ("Customer") contains the rules, regulations, terms and restrictions pertaining to Customer's use of Company's service(s) and any related products and/or services that Customer orders from Company (collectively, the "Service").
1. THE SERVICE
1.1 Service(s): "Service(s)" shall be defined as follows:
a. Service(s) for SentraCloud accounts shall include managed WorldSmart® Voice Service(s), managed WorldSmart® Non-Voice Service(s), SentraCloud managed SmartBand Service(s) and SentraCloud managed SmartCPE, which provides management of any on-premise equipment provided by Company. Descriptions of these Services can be found on the Company's website at http://www.panterranetworks.com .
b. Service(s) for non-SentraCloud accounts (self-managed WorldSmart® accounts) shall include WorldSmart® Voice Service(s) and WorldSmart® Non-Voice Service(s).
1.2 Right to Use Service: Company hereby grants Customer the right to use the Service during the Term strictly in accordance with the terms and condition of this Agreement. The right to use the TryUC Service is limited to Customers who do not have a WorldSmart® account.
1.3 Support: Company agrees to provide Customer those levels of support in connection with Customer's use of the Service set forth in, and subject to the terms and conditions of, Company's Service Level Agreement a copy of which can be found at https://central.wspbx.com/signuppages/sla.htm.
1.4 Number Transfer on Service Termination: For those Services that require this function, Local Number Portability (LNP) refers to the order from the Federal Communications Commission (FCC) requiring all telecom providers to allow customers to retain their phone numbers when changing service providers, as long as the customer stays within the same local calling zone. Instead of disconnecting service numbers, Customer may choose to port their number(s) "out" to another carrier. Customer initiates this by contacting a new service provider to initiate a port in. The new service provider will then contact Company with a port-out request. Company will follow industry-sanctioned procedures to fulfill the port out request if: (a) such new service provider is able to accept such number; and (b) Customer's account is completely current, including payment for all charges and applicable Termination Fees.
1.5 Ownership and Risk of Loss: Other than those devices supplied by Company, Customer is responsible, at their sole cost and expense, for purchasing any and all required devices necessary for the use of the Service including, but not limited to, any IP phones, multimedia terminal adapter, analog telephone adapter and any other IP connection device (each, a "Device" and, collectively, "Devices").
1.6 SmartBand Equipment and Maintenance: Service must terminate into a Company-approved router on the Customer Premises (CPE). A CPE router is required for the exchange of traffic between the internet and the Customer will be furnished by Company. If provided by the Company, Company will maintain, manage and support all SmartBand equipment, including all associated device configurations. Customer must provide Company unrestricted access to Company-provided SmartBand equipment for purposes of testing, upgrading, and other maintenance activities. Company will not be responsible for management of Company-provided SmartBand equipment if Customer has modified the SmartBand equipment, including making any configuration changes.
1.7 SmartBand Service Demarcation: The point of demarcation for Service is the physical network location to which the Customer provided SmartBand router is connected or, the LAN port at which interconnection takes place at Company's sole discretion. Customer will provide Company with access to Customer's premises, as necessary, to facilitate Service installation, testing and maintenance requirements.
1.8 SmartBand Service Commencement: Company will notify Customer when: (a) Service is installed or connected, successfully tested, and available for Customer use; and (b) after the SmartBand equipment has been installed and is operational in Company's sole discretion. Billing will begin on the start of Service date. Company shall not be liable for any damages of any nature resulting from delays in meeting requested or specified service dates or its inability to provide Service.
2. PROHIBITED USES; LIABILITY FOR CONTENT.
2.1 Service Not For Resale: Customer is not authorized to resell or transfer the Service or any portion thereof to any other party without Company's prior written consent, which may be withheld in Company's sole discretion.
2.2 Excessive Use: Company reserves the right to immediately terminate or modify Customer's Service if Company determines, in Company's sole and absolute discretion, that Customer's use of the Service is, or at any time was, inconsistent with normal business usage patterns. In addition, Customer will be required to pay for higher rates for commercial service for all periods in which Customer's use of the Service was inconsistent with normal business use. The TryUC Service is not subject to excessive use charges, but may be terminated at Company's discretion for usage inconsistent with normal business patterns.
2.3 Unlawful Purposes: Customer may only use the Service for lawful purposes in accordance with the terms and conditions of this Agreement. Company reserves the right to terminate Customer's Service with or without notice if, in Company's sole and absolute discretion, Company determines that Customer has used the Service, or any portion thereof, for any unlawful purpose. In the event of such termination, Customer will be responsible for the full monthly charges to the end of the current term, including, without limitation, unbilled charges, plus the Termination Fee, if applicable, all of which will become immediately due and payable upon termination of Customer's Service. If Company determines in Company's sole and absolute discretion that Customer has used the Service for an unlawful purpose, Company may forward the relevant communication and other information, including Customer's identity, to the appropriate authorities for investigation and prosecution. Customer hereby consents to Company forwarding of any such communications and information to these authorities.
2.4 Inappropriate Conduct: Customer shall not use the Service or any portion thereof in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or any similar behavior. Company reserves the right to immediately terminate Customer's Service if, in Company's sole and absolute discretion, Company determines that Customer has used the Service or any portion thereof in any of the aforementioned ways. In the event of such termination, Customer will be responsible for the full monthly charges to the end of the current term, including, without limitation, unbilled charges, plus the Termination Fee, if applicable, all of which will become immediately due and payable upon termination of Customer's Service. If Company believes that Customer has used the Service or any portion thereof in any of the aforementioned ways, Company may forward the relevant communication and other information, including Customer's identity, to the appropriate authorities for investigation and prosecution. Customer hereby consents to Company forwarding of any such communications and information to these authorities.
2.5 Reservation of Rights: Notwithstanding anything to the contrary herein, Company reserves the right to provide information in response to law enforcement requests, subpoenas, court orders and in any other manner that Company deems necessary to protect Company's rights and property or where failure to disclose the information may lead to imminent harm to the Customer or others.
2.6 Content: Customer shall be solely responsible for any and all liability that may arise out of any content transmitted by Customer or any other person, whether authorized or unauthorized, using Customer's Service or any portion thereof (each such person, a "User"). Customer is solely responsible for ensuring that Customer's use, as well as the use by all other Users, complies at all times with this Agreement and all applicable laws, regulations and written and electronic instructions for use. Company reserves the right to terminate or suspend the Service and remove Customer's or all Users' content from the Service if Company determines, in Company's sole and absolute discretion, that such use or content does not conform to the requirements set forth in this Agreement or interferes with Company's ability to provide Services to Customer or others. Nothing in this Agreement shall be deemed to create any duty on Company's part to review and/or monitor Customer's use of the Service to determine if a violation has occurred. Company's action or inaction under this Agreement shall not constitute an approval by Company of any of Customer's, or Customer's Users, activities or use of any content.
2.7 SmartBand Service Disclaimer: Company exercises no control over, and therefore accepts no responsibility for information or content passing through the Company's host computers, Company Network hubs and POPs (the "Company Network"). EXCEPT AS EXPRESSLY SET FORTH IN THE SERVICE LEVEL AGREEMENT, COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE SERVICE OR EQUIPMENT IT PROVIDES, AND IT DISCLAIMS ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Company expressly denies any responsibility for the accuracy or quality of information obtained by Customer or its end users through the use of Service. The use of any information obtained via the Company's Service is at Customer's and end user's own risk.
3. LIMITATIONS OF SERVICE.
3.1 Service Level Agreement: Service shall be provided as defined by the Service Level Agreement located at: https://central.wspbx.com/signuppages/sla.htm.
3.2 Service Distinctions: The Service is not a telecommunications service and Company provides it on a best efforts basis. Important distinctions exist between telecommunications services and the Service that Company provides. The Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect Customer's rights of redress before regulatory agencies.
3.3 911 and E911 Dialing Services: The Service does not support traditional 911 or E911 access to emergency services. Please carefully review Company's 911 and E911 Dialing Service Guidelines which can be found at https://central.wspbx.com/signuppages/911.html and which is incorporated herein by reference. TryUC Service does not support 911 dialing.
3.4 Privacy: The Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Company is not liable for and hereby disclaims any and all liability resulting from any lack of privacy which may be experienced with regard to the Service. Please refer to Company's Privacy Policy that is posted on Company's Site for additional information. Company agrees that Company will not knowingly or purposefully provide or sell any call detail records or any other personal information to any party except as expressly authorized herein.
3.5 Use of Service by Customers Outside the United States: Although Company encourages Customer to use the Service to place calls to foreign countries from within the United States, Company does not presently offer or support the Service in any countries other than the United States. If Customer uses the Service outside of the United States, Customer will be solely responsible for any violations of local laws and regulations resulting from such use. Company makes no warranties or guarantees as to the quality or availability of services if used in any country other than the United States.
3.6 No 0+ or Operator Assisted Calling; May Not Support x11 Calling: The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 511 and/or other x11 services in one or more (or all) service areas.
4. CHARGES; PAYMENTS; TAXES.
4.1 Activation Fees: Upon subscribing to the Service, and each time Customer adds additional seats to Customer's service, Customer will be billed a one time provisioning and setup fee. The foregoing fee covers Customer's basic account configuration data and does not include any installation or training fees that Customer may be required to incur. This activation fee will be included in Customer's service quote and is subject to change from time to time.
4.2 Unlimited Plan Users: Company offers a variety of unlimited user plans designed to simplify billing for the Customer; however, unlimited user plans are limited to Reasonable Business Use only. "Reasonable Business Use" is defined to mean normal usage as more fully described in the Company product literature. If the Service is subscribed for on an unlimited plan and Company deems in Company's sole and absolute discretion that Customer is using a predictive dialer application or that Customer is otherwise abusing the unlimited plan feature, in addition to Company's other rights and remedies herein, Company reserves the right to re-price the service or offer a new service plan in accordance to standard industry billing practices for such activities.
4.3 Monthly Usage Fees: Upon activation of the Service, Customer will be responsible for paying all applicable usage fees in connection with Customer's use of the Service. The usage fees shall include, without limitation, monthly Service fees which include, but are not limited to, the following features: calling, conferencing and other minute-based charges, international usage charges, domestic and other per minute usage charges, and advanced feature charges. Any domestic (US), international (non-US and non-Canada) or toll free usage charges shall be billed in six second increments.
4.4 Fee for 911 Calls: All accounts are required to complete a 911 call routing profile, and to keep that profile updated. If Customer does not complete a profile or keep the profile updated for changes to Customer's account, Company reserves the right to charge a $100 fee per 911 call that is incorrectly routed.
4.5 Regulatory Recovery Fee: A Regulatory Recovery Fee is charged monthly to offset costs incurred by Company in maintaining compliance with federal, state and municipal regulatory bodies, government inquiries and related legal expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee will apply to each user seat that includes a DID.
4.6 Invoicing and Payment Terms: Customer will receive a monthly electronic invoice for all fees payable in connection with the Service. Customer's first monthly invoice will include actual usage charges for the first month of Service plus monthly recurring charges for the following month of Service. If the Service was initiated after the first day of the month, the first month of service will be billed at a pro-rated amount based on the date that the account was provisioned, Each monthly invoice thereafter will include an adjustment to the amount billed in the prior month for actual increases or decreases in Customer's current month Service, plus monthly recurring charges for the next month. All fees are payable net 10 days from the date of the applicable invoice. Customer's failure to pay any fees due hereunder in a timely manner shall constitute a material breach of this Agreement. Late payments are subject to a late charge of one and one-half percent (1.5%) per month from the date due until payment is received. Customer shall be responsible for reimbursing Company for all costs that Company incurs to collect such amounts, including, without limitation, collection costs and attorney's fees.
4.7 Method of Payment: Upon activation of the Service, Customer must provide Company with a valid email address and a credit or debit card number from a card issuer that is acceptable to Company. Company reserves the right to stop accepting credit or debit cards from one or more issuers. Customer must promptly notify Company in the event that Customer's credit or debit card expires, Customer closes their credit account, Customer's billing address changes, or Customer's credit or debit card is cancelled and/or replaced on account of loss or theft. Regardless of the payment method that Customer selects, Customer's subscription to the Service authorizes Company to charge Customer's credit or debit card. Customer may terminate Company's authority to charge Customer's credit and/or debit card upon thirty (30) days prior written notice. If Customer terminates Company's authority to charge Customer's credit or debit card, then Company may terminate the Service and charge Customer's credit or debit card for any and all fees due including, but not limited, to any applicable Termination Fees and other outstanding fees and charges.
4.8 Advance Payment: If Customer has selected one of the advance payment options during the Quote process, Customer agrees to make the advance payment within 30 days of the invoice date in exchange for the advance payment discount. If Customer reduces their Service during the Seat Term, no refunds will be made. If Customer makes additions to the Service during the Seat Term, those Services will be invoiced separately. Advance payments exclude Services for which there are separate usage charges such as Toll Free and International Long Distance. These Services will be invoiced separately.
4.9 Payment by ACH, Wire Transfer or Check: Customers with total Service billings in excess of $1,000 per month may request to make payments via ACH, wire transfer or check. Company's approval may be withheld in Company's sole discretion with or without reason and may be conditioned upon a satisfactory review of Customer's credit and the posting of a security deposit in an amount that Company deems reasonable. If any payment by check does not clear due to insufficient funds, Customer shall pay Company a NSF fee in the amount of $50 in addition to any other fees payable hereunder.
4.10 Billing Disputes: All payments to Company are nonrefundable. Customer must notify Company in writing within fifteen (15) days of the invoice date if Customer disputes any of Company's charges for that month or Customer will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to: Customer Care Billing Department -- billing@worldsmartcentral.com. If Customer disputes a charge to Customer's credit card issuer that, in Company's sole discretion, is a valid charge under the provisions of this Agreement, Customer agrees to pay Company an additional Investigatory Fee in the amount of $100.00.
4.11 Taxes: Customer is responsible for all applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of Customer's subscription or use or payment for the Service. Such amounts are in addition to payment for the Service and will be billed to Customer's credit card as set forth in this Agreement. If Customer is exempt from payment of such taxes, Customer must provide Company with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date Company receives such certificate.
4.12 Try UC Service: The TryUC Service is provided at no charge, and no invoices shall be sent for use of this Service.
5. TERM; TERMINATION; TERMINATION FEES.
5.1 Term: The term shall commence on the date that Company activates Customer's Service (the "Effective Date") and continue until terminated by Customer or by Company. For those Customers who sign up for one or more year term, ("Initial Term") the term shall end at the selected number of years after the Effective date, depending on which term Customer selected. For those Customers whose one or more year term has expired, the Service shall continue in effect on a month to month basis. Following the Initial Term, the Service and this Agreement shall automatically renew on a monthly basis unless Customer i) signs up for another one or more year term agreement or ii) gives Company written notice of non-renewal at least ten (10) days prior to the end of the then current monthly term. Each month of Service from the Effective Date through the cancellation date shall be collectively referred to as "the Term." The TryUC Service has no term and may be cancelled by Customer or Company at any time.
5.2 Early Termination by Customer or by Company for Cause: If Customer terminates the Service prior to the end of the Term or if Company terminates Customer's Service as a result of Customer's breach of any provision of this Agreement, Customer will be responsible for immediately paying Company the following fees and charges: (a) all fees and expenses incurred through the date of termination, (b) all unbilled charges for the remainder of the Term, (c) Customer will return, at Customer's expense, any Company owned equipment in the same condition as when it initially was delivered and installed, reasonable wear and tear excepted, and (d) if Customer's account is on a one or more year term, a cancellation fee equal to the balance of the monthly cost which is defined as the last full month's invoice amount for the Service times the number of whole remaining months in the Term plus the prorated amount for any partial remaining month. In addition, Customers on month to month plans will be responsible for the next full month's charges in the event that Customer does not provide the requisite ten-day notice of termination prior to the expiration of the then-current term. Customer must have at least one active seat for Customer's account to be considered to be in good standing. In the event Customer chooses to reduce the number of active seats on Customer's account to zero, Customer's account will automatically be terminated within 30 days and all fees and charges described above will apply.
6. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES.
6.1 Exclusions from Liability: Other than for Services and equipment supplied by Company to Customer, under no circumstances shall Company or Company's suppliers be liable for any delay or failure to provide the Service, including 911 dialing, or any interruption or degradation of voice quality that is caused by any of the following: (i) an act or omission of an underlying carrier, service provider, vendor or other third party; (ii) equipment, network or facility failure; (iii) equipment, network or facility upgrade or modification; (iv) force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions; (v) equipment, network or facility shortage; (vi) equipment or facility relocation; (vii) service, equipment, network or facility failure caused by the loss of power to Customer; (viii) outage of, or blocking of ports by, Customer's ISP or broadband service provider or other impediment to usage of the Service caused by any third party; (ix) any act or omission by Customer or any person using the Service or any portion thereof; or (x) any other cause that is beyond Company's control, including, without limitation, a failure of or defect in any device, the failure of an incoming or outgoing communication, the inability of communications (including, without limitation, 911 dialing) to be connected or completed, or forwarded. Company will not be liable for any action it takes to remove or restrict access to obscene, indecent or offensive content made available by Customer, nor for any action taken to restrict access to material made available in violation of any law, regulation or rights of a third party including, but not limited to, rights under the copyright law and prohibitions on libel, slander and invasion of privacy.
6.2 Limitation of Consequential Damages: IN NO EVENT SHALL COMPANY OR COMPANY'S SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT COMPANY WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
6.3 Limitation of Direct Damages: THE AGGREGATE LIABILITY OF COMPANY AND COMPANY'S SUPPLIERS TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT CUSTOMER ACTUALLY PAID TO COMPANY UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICE SET BY COMPANY UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, CUSTOMER RELEASES COMPANY AND COMPANY'S SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED IN THIS AGREEMENT.
6.4 Disclaimer of Warranties: CUSTOMER'S USE OF THE SERVICE IS AT CUSTOMER'S OWN RISK AND IS PROVIDED ON AN "AS IS" BASIS. NEITHER COMPANY NOR COMPANY'S SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER COMPANY NOR COMPANY'S SUPPLIERS SHALL BE LIABLE FOR UNAUTHORIZED ACCESS TO ANY TRANSMISSION FACILITIES, DEVICES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, ANY OF CUSTOMER'S, OR CUSTOMER'S USERS, DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION WHETHER CAUSED BY ACCIDENT, FRAUDULENT MEANS OR ANY OTHER METHOD, REGARDLESS OF THE CAUSE OR THE PARTY DETERMINED TO BE AT FAULT. ANY AND ALL STATEMENTS OR DESCRIPTIONS MADE BY COMPANY AND/OR COMPANY'S EMPLOYEES OR AGENTS PERTAINING TO THE SERVICE OR ANY DEVICE ARE FOR INFORMATIONAL PURPOSES ONLY AND SHALL NOT BE DEEMED TO PROVIDE A WARRANTY OF ANY KIND.
6.5 Liquidated Damages: CUSTOMER UNDERSTANDS THAT COMPANY IS PROVIDING SERVICES FOR CUSTOMER ON THE BASIS OF A FIXED TERM CONTRACT. SHOULD CUSTOMER CANCEL THE SERVICES BEFORE THE END OF THE TERM, OR STOP PAYING FOR SERVICES, OTHER THAN A BILLING DISPUTE PER SECTION 4.12, BEFORE THE END OF THE TERM, CUSTOMER AGREES TO PAY LIQUIDATED DAMGES EQUAL TO THE MONTHLY COST OF THE SERVICES TIMES THE REMAINING TERM OF THE SERVICES, PLUS THE COST OF ANY COMPANY OWNED HARDWARE THAT IS NOT RETURNED OR THAT IS RETURNED DAMAGED, PLUS ATTORNEY FEES IF ANY THAT ARE INCUIRRED IN COLLECTING THE LIQUIDATED DAMAGES.
7. PROPRIETARY RIGHTS.
7.1 Copyright; Trademark: The Service, all firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, and all Services, information, documents and materials on Company's Site are protected by trademark, copyright or other intellectual property laws and international treaty provisions. Company's websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") are and will at all times remain Company's exclusive property. Nothing in this Agreement grants Customer the right or license to use any of Company's marks.
7.2 Unauthorized Usage of Software: Customer has not been granted any license to use the software in conjunction with Customer providing the Service to a third party, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. Customer hereby represent and warrant that Customer possesses all required rights, including software and/or firmware licenses, to use any interface device that Company has not provided to Customer. In addition, Customer shall indemnify and hold Company harmless against any and all liability arising out of Customer's use of such interface device with the Service. Customer will not reproduce, modify, translate, transform, decompile, reverse engineer, disassemble, or otherwise determine, or attempt to determine, source code from any Company or third party software, nor will it permit or authorize any third party to do so. Title to such software, and all related technical know-how and intellectual property rights therein, will remain the exclusive property of Company and/or its suppliers. Customer must not take any action to jeopardize, limit or interfere in any manner with Company's or a supplier's ownership rights with respect to any licensed software.
7.3 Tampering with the Service: Customer shall not tamper with or reverse compile any software associated with the Service without Company's prior written consent. Company reserves the right to terminate Customer's Service if Company believes, in Company's sole and absolute discretion, that Customer has tampered with the software. Customer shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose.
7.4 Theft of Service: Customer shall notify Company immediately, in writing or by calling Company's support line, if any Device is stolen or if Customer becomes aware at any time that Customer's Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When Customer calls or writes to Company, Customer must provide Customer's account number and a detailed description of the circumstances of the theft, fraudulent use or unauthorized use of the Service. Failure to do so in a timely manner may result in Company's termination of Customer's Service for breach and additional charges to Customer. Until such time as Company receives notice of the theft, fraudulent use or unauthorized use, Customer will be liable for all use of the Service using a device stolen from Customer and any and all stolen, fraudulent or unauthorized use of the Service.
8. MISCELLANEOUS.
8.1 Indemnification: Customer shall defend, indemnify, and hold harmless Company, and Company's officers, directors, employees, affiliates, agents and suppliers from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees and costs) by, or on behalf of, Customer or any third party or user of the Service, relating to the Services, including, without limitation, 911 dialing, or any device.>
8.2 No Third Party Beneficiaries: No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
8.3 Governing Law: The Agreement and the relationship between the Customer and the Company are governed by the laws of the State of California without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent herewith, Customer shall submit to the personal and exclusive jurisdiction of the courts located within the state of California and waive any objection as to venue or inconvenient forum.
8.4 Mandatory Arbitration and No Jury Trial: Any dispute or claim between Customer, any member of Customer's household or any guest or employee of Customer and Company arising out of or relating to the Service or any portion thereof 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 Santa Clara County, California. 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 this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. All claims shall be arbitrated individually. Customer shall not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN, CALIFORNIA.
8.5 Survival: All provisions of this Agreement relating to Company's intellectual property rights, limitation and exclusion of liability and warranties, Customer's indemnification obligations and Customer's obligation to make payments hereunder will survive the termination or expiration of the Agreement.
8.6 No Waiver of Rights: Company's failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
8.7 Entire Agreement: This Agreement and the other agreements, policies and guidelines referenced herein, including any future modifications as may occur to such documents constitute the entire agreement between Customer and Company and governs the use of the Service by Customer and authorized members of Customer's company. This Agreement supersedes any prior agreements between Customer and Company and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
8.8 Severability: If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
FOR SENTRACLOUD ACCOUNTS:
PLEASE PRINT AND SIGN THIS AGREEMENT AND SEND BACK TO COMPANY. BY SIGNING BELOW, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT AND AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AS WELL AS ALL OTHER AGREEMENTS, POLICIES AND GUIDELINES REFERENCED HEREIN, WHICH ARE INCORPORATED HEREIN BY REFERENCE.
FOR NON-SENTRACLOUD ACCOUNTS (SELF MANAGED WORLDSMART ACCOUNTS):
BY CLICKING THROUGH, AND/OR REGISTERING FOR AND USING THE SERVICES, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT AND AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT AS WELL AS ALL OTHER AGREEMENTS, POLICIES AND GUIDELINES REFERENCED HEREIN, WHICH ARE INCORPORATED HEREIN BY REFERENCE.
| PANTERRA NETWORKS, INC. | CUSTOMER: _____________________________ |
| By: ___________________________________ | By: ___________________________________ |
| Name: ___________________________________ | Name: ___________________________________ |
| Title: ___________________________________ | Title: ___________________________________ |
| Date: __________________________________ | Date: __________________________________ |