THIS SERVICE AGREEMENT is made as of ___ , 20 , (the “Effective Date”) by and between ____________________________ (“Customer”), and ESP Delivers, LLC (“ESP”).
This Service Agreement consists of (i) this cover page, (ii) the General Terms and Conditions attached hereto and incorporated herein, and (iii) each Service Activation Form signed by Customer and ESP ((i) through (iii) collectively, this “Agreement”). In the event of any conflict among the foregoing, the following provisions shall govern, in order of precedence: this cover page, the General Terms and Conditions, the applicable Service Activation Form (and the provisions of any later dated Service Activation Form shall govern over the terms of any earlier dated Service Activation Form); provided that where a Service Activation Form expressly references the section(s) of the General Terms and Conditions intended to be superseded, such Service Activation Form shall govern with respect to such referenced terms only.
Notices required to be given by one party to the other under this Agreement in writing must be delivered by overnight delivery service, by facsimile, or by registered mail, return receipt request, to the addresses provided below; provided ESP may notify Customer by email at the email address below. Each written notice shall be deemed given for all purposes at such time as it is delivered to the address provided below for each party.
If to Customer:
Notwithstanding the foregoing, invoices shall be delivered to, and all other notices shall be deemed delivered to Customer if delivered the following
If to ESP:
ESP Delivers, LLC
19 Bala Avenue
Bala Cynwyd PA 19004
Fax: (484) 382-9140
IN WITNESS WHEREOF, the parties, each acting under due and proper authority, acknowledging the mutual promises and adequacy of consideration, and intending to be legally bound, by their signatures below agree that they have entered into this Agreement as of the Effective Date.
ESP Delivers, LLC
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS. Capitalized terms not otherwise defined in this Agreement have the meanings set forth below.
1.1. “Fees” means the fees for the Services, as set forth on the applicable SAF, and any additional charges for the Services, including for training, reinstallation and other support for the Services set forth herein.
1.2. “Equipment means any equipment or hardware used in conjunction with the Services, such as an IP phone, multimedia terminal adapter, analog telephone adapter, switch, router or any other IP connection device.
1.3. “Excessive Use” means the amount of usage of a Service measured in minutes that equals or exceeds: (a) for a period of two consecutive calendar months, 98% of the usage of ESP’s other customers; or (b) in any calendar month, 120% the Customer’s average monthly usage for term or the immediately preceding three calendar month period, whichever period is shorter.
1.4. “Monthly Recurring Charges” means the charges billed by ESP to the Customer each month for a provided Service, exclusive of pre-paid or any usage fees, taxes, and non-recurring charges.
1.5. “Person” means any individual, association, organization or entity.
1.6. “Service” means each service to be performed or provided by ESP as set forth on an Service Order.
1.7. “Service Activation Form” or “SAF” means each statement of Services [which sets forth for each Service covered thereby, the initial term, monthly recurring charges, nonrecurring charges and amount due therefore, in addition to any other terms set forth thereon. No SAF shall be effective unless signed by each party. Each SAF shall be deemed to be incorporated herein and made a part hereof by reference.
1.8. “Unlimited Plan” means a Service which is not subject to a restriction on the number of minutes that may be used or amount of data that may be transmitted or received, by Customer.
1.9. “VOIP Service” means ESP’s voice over Internet protocol service.
2.1. ESP shall provide the Services to Customer, subject to the terms and conditions of this Agreement, in accordance with Exhibit I, attached hereto and incorporated herein, and for so long as Customer pays when due the Fees incurred therefore.
2.2. Unless training and reinstallation services are expressly set forth as Services to be provided on the SAF, the Services do not include training on use of the Services or reinstallation of the Services. If Customer requires training on or reinstallation of the Services, and ESP agrees to provide such services, the parties shall enter into a separate SAF at ESP’s then-current hourly rates. In addition, unless expressly designated as “included” in the Fees set forth on the SAF, in the event that ESP performs any maintenance services onsite, such Services shall be charged to Customer at ESP’s hourly rates then in effect for such Services, including travel time.
2.3. Notwithstanding any provision to the contrary, ESP shall have the right, without liability to Customer or any other Person, to interrupt the provision of the Services when reasonably necessary for testing, maintenance or in emergency circumstances.
2.4. NOTICE: IMPORTANT DISTINCTIONS EXIST BETWEEN VOIP SERVICE AND TRADITIONAL TELEPHONE SERVICES. VOIP SERVICE DOES NOT SUPPORT 0+ OR OPERATOR ASSISTED CALLING (INCLUDING, WITHOUT LIMITATION, COLLECT CALLS, THIRD PARTY BILLING CALLS OR CALLING CARD CALLS), AND MAY NOT SUPPORT 311, 511 AND/OR OTHER X11 (OTHER THAN CERTAIN 911 AND 411) SERVICES IN ONE OR MORE (OR ALL) SERVICE AREAS. IF CUSTOMER OBTAINED A PHONE NUMBER FROM ESP AS PART OF THE VOIP SERVICE, THAT PHONE NUMBER WILL NOT BE LISTED IN ANY TELEPHONE DIRECTORY. THE VOIP SERVICE MAY NOT BE COMPATIBLE WITH SECURITY SYSTEMS AND SOME BROADBAND SERVICES OR BROADBAND MODEMS. CUSTOMER IS RESPONSIBLE FOR CONTACTING ITS SECURITY COMPANY OR BROADBAND PROVIDER, IF ANY, TO TEST THE COMPATIBILITY OF CUSTOMER’S SECURITY SYSTEM AND BROADBAND SERVICES WITH THE VOIP SERVICE.
3. EMERGENCY SERVICES – 911 DIALING. ESP’s VOIP 911 Dialing is different than traditional Wireline Enhanced 911 (“E911”) service. E911 systems automatically provide to emergency service personnel a caller’s call back phone number, referred to as Automatic Number Identification (“ANI”) and, in most instances, the caller’s location information, referred to as Automatic Location Information (“ALI”). Traditional phone service providers generally associate a particular phone number with a fixed address. VOIP service providers may not be able to determine the location of the caller automatically. Because there are differences between VOIP E911 and traditional Wireline E911 services, there are certain limitations that every Customer needs to know.
3.1. E911 Service. ESP shall supply the following E911 capabilities to the Customer: ESP will transmit all 911 calls, as well as ANI and the caller’s Registered Location for each call, to the Public Safety Answering Point (“PSA”P), designated statewide default answering point, or appropriate local emergency authority that serves the caller’s Registered Location and that has been designated for telecommunications carriers. For the purposes of this paragraph, “all 911 calls” shall mean “any voice communication initiated by an interconnected VOIP user dialing 911” and the term “interconnected” refers to the ability of the user to receive calls from and terminate calls to the public switched telephone network (“PSTN”). These requirements apply only to 911 calls placed by users whose Registered Location is in a geographic area served by a Wireline E911 Network, which is defined as “a dedicated wireline network that: (1) is interconnected with but largely separate from the public switched telephone network; (2) includes a selective router; and (3) is utilized to route emergency calls and related information to PSAPs, designated statewide default answering points, appropriate local emergency authorities or other emergency answering points.” All 911 calls will be routed through the use of ANI and, if necessary, pseudo-ANI, via the dedicated Wireline E911 Network. If a PSAP, designated statewide default answering point, or appropriate local emergency authority is not capable of receiving and processing either ANI or location information, ESP need not provide such ANI or location information; however, ESP is obligated to transmit via the Wireline E911 Network all 911 calls to the PSAP, designated statewide default answering point, or appropriate local emergency authority that serves the caller’s Registered Location (as defined in Section 3.2).
3.2. Registered Location Requirement. Prior to the initiation of Services, Customer must register with ESP the physical location, for each phone number, at which the Services will first be utilized (“Registered Location”). Thereafter, Customer may update such Registered Location information at will by following the instructions from the “911” registration link on the ESP web account dashboard features page or through the end user’s IP-compatible Customer Premises Equipment (“CPE”) and the ALI database. Only one location may be registered for each phone line used. The Registered Location will be available to the appropriate PSAP, designated statewide default answering point, or appropriate local emergency authority from or through the appropriate ALI database.
3.3. Non-Availability of Traditional 911 or E911 Dialing Service. There are several circumstances under which E911 service may not be available through the interconnected VOIP service or may be in some way limited by comparison to traditional E911 services. Such circumstances include, but are not limited to, relocation of the CPE , use by the end user of a non-native telephone number, broadband connection failure, and loss of electrical power, and delays that may occur in making a Registered Location available in or through the ALI database. The ESP Service does not support traditional 911 or E911 access to emergency services in all locations. Where ESP does not offer traditional 911 or E911 access, ESP does offer a feature known as “911 Dialing” which is a limited emergency calling service that is available to ESP Customers. The 911 Dialing feature may not work at all when used in conjunction with a Soft Phone, Virtual Numbers or Subscriber provided CPE. ESP’s 911 Dialing feature is not automatic; Customers must register the address for each phone number where they will use the Services in order to activate the 911 Dialing feature. ESP will send an email to the Customer confirming that the 911 Dialing feature has been activated for a phone line. Customer shall inform any users that may be present at the physical location where the Services are utilized of (i) the non-availability of traditional 911 or E911, and (ii) the important differences in and limitations of the ESP 911 Dialing feature as compared with traditional 911 or E911. ESP shall distribute to Customer warning stickers or other appropriate labels, including warning stickers that accompany each Device purchased through ESP, concerning E911 service that may be limited or not available (the “911 Warning Sticker”). It is the Customer’s responsibility, in accordance with the instructions that accompany each Device, to place the 911 Warning Sticker on or near the equipment used with the VOIP Service. Customers may contact our customer care department at 855-377-8647 (ESP-VOIP) for additional 911 Warning Stickers. Customer shall provide an affirmative acknowledgement of having received and understood the advisory described herein about the circumstances under which E911 service may not be available through VOIP service or may be in some way limited by comparison to traditional E911 service.
3.4. Transmitting 911 Calls to Emergency Personnel. It may not be possible for the emergency personnel to automatically obtain your address and phone number when dialing 911. As a result, the emergency personnel may not be able to call you back if the call is not completed or is disconnected. You may need to state the nature of your emergency, and include your location and possibly your telephone number. If ESP uses a third party to assist with transmitting 911 calls to emergency personnel, you hereby authorize ESP to disclose your name and address to a third party service provider and emergency personnel for the purpose of transmitting 911 calls and dispatching emergency services to your Registered Location.
3.5. Service Outages. In the event of a service outage caused by a power failure or disruption, a suspension or termination of service by your broadband service provider or Internet service provider, or another reason, your 911 Dialing will not function. Please inform ESP, and ESP will attempt to work with you to resolve the issue.
3.6. Re-Activation Required if You Change, Add or Port New Numbers. 911 Dialing will not function if you change your phone number or if you add or port new phone numbers to your account, unless and until you register the location for each changed, newly added or newly ported phone number.
3.7. Network Congestion; Reduced Speed for Routing 911 Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over the PSTN.
3.8. DISCLAIMER OF LIABILITY AND INDEMNIFICATION. ESP DOES NOT HAVE CONTROL OVER WHETHER, OR THE MANNER IN WHICH, CALLS USING ITS 911 DIALING SERVICE ARE ANSWERED OR ADDRESSED BY ANY PSAP. ESP SHALL HAVE NO RESPONSIBILITY FOR THE CONDUCT OF ANY PSAP AND THE NATIONAL EMERGENCY CALLING CENTER. ESP RELIES ON THIRD PARTIES TO ASSIST IT IN ROUTING 911 DIALING CALLS TO THE APPROPRIATE PSAP AND TO A NATIONAL EMERGENCY CALLING CENTER. ESP DISCLAIMS ANY AND ALL LIABILITY OR RESPONSIBILITY IN THE EVENT SUCH THIRD PARTY DATA USED TO ROUTE CALLS IS INCORRECT OR YIELDS AN ERRONEOUS RESULT. NEITHER ESP NOR ITS OFFICERS OR EMPLOYEES SHALL BE LIABLE FOR ANY CLAIM, DAMAGE, OR LOSS, AND CUSTOMER HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION, ARISING FROM OR RELATING TO OUR 911 DIALING SERVICE, OF ANY TYPE, WHETHER IN TORT OR UNDER CONTRACT. CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS ESP, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO DIRECTLY OR INDIRECTLY THROUGH ESP FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEY’S FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY RELATING TO THE ABSENCE, ERROR, FAILURE OR OUTAGE OF THE SERVICES, INCLUDING 911 DIALING, INCORRECTLY ROUTED 911 DIALING CALLS, AND/OR THE INABILITY OF ANY USER OF THE SERVICE TO BE ABLE TO USE 911 DIALING OR ACCESS EMERGENCY SERVICE PERSONNEL.
3.9. ALTERNATE 911 ARRANGEMENTS. YOU ACKNOWLEDGE THAT ESP’S VOIP 911 DIALING IS DIFFERENT THAN TRADITIONAL WIRELINE E911 SERVICE. YOU SHOULD HAVE ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 OR E911 SERVICES, SUCH AS A LAND LINE, IF YOU ARE NOT COMFORTABLE WITH THE LIMITATIONS OF THE 911 DIALING SERVICE.
4. FEES AND PAYMENT.
4.1. ESP only accepts, and Customer shall make, payment by check, wire transfer of immediately available funds or credit card from issuers accepted by ESP. ESP may change from time to time in its sole discretion which card issuers it accepts, and shall use commercially reasonable efforts to notify Customer of any changes. If Customer pays by credit card, customer shall provide ESP with its credit card number and a valid email address on the Effective Date, together with an authorization to charge such card. Customer must provide updated credit card payment information to ESP immediately if Customer’s authorized credit card expires, is cancelled, is replaced on account of loss or theft, or otherwise is closed, or if Customer’s billing address changes.
4.2. ESP will invoice Customer on a monthly basis for all Services in advance, except for usage-based Fees, which will be billed monthly in arrears. Any usage-based Fees will be billed at the rates set forth on the SAF], which may change from time to time, and will be billed in increments that are rounded up to the nearest minute, except as otherwise set forth in the rate schedules then in effect.
4.3. Monthly invoices will be sent to Customer’s email addresses on file with ESP. Customer must notify ESP, by sending a letter by certified mail, return receipt requested to ESP’s address on the first page of this Agreement, no later than seven (7) days after receiving an invoice of any disputes regarding such invoice. Any amounts remaining unpaid under this Agreement for more than ten (10) business days after the date on which ESP provides an invoice to Customer shall accrue interest from the date due at a rate of one and a half percent (1.5%) per month (prorated for partial periods), or the maximum interest rate permitted by law, whichever is less. Customer shall pay all costs and expenses incurred by ESP to collect amounts due to ESP pursuant to this Agreement, including reasonable attorneys and professional fees, court costs and all costs and expenses of enforcing any judgments obtained.
4.4. 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 the Services or Equipment. Such amounts are in addition to the Fees. ESP will invoice Customer or charge Customer’s authorized credit card for such governmental taxes, fees or charges, unless Customer provides ESP with an original valid certificate of tax-exempt status that satisfies all applicable legal requirements attesting to tax-exempt status. ESP will not charge Customer for taxes from which it is exempt, after the date ESP receives such certificate.
5. TERM. This Agreement shall become effective on the Effective Date and shall have an initial term as set forth on the SAF. This agreement shall automatically renew for successive one-year periods on the expiration of the initial term, and each anniversary of the expiration date of the initial term, if neither the Customer nor ESP notifies the other party of its non-renewal of the Agreement at least 45 days prior to the expiration of the then-current term.
6. EARLY TERMINATION. Customer may terminate this Agreement without cause at any time upon thirty (30) days’ prior written notice to ESP, provided that Customer pays ESP an early termination fee calculated as follows: (a) if Customer terminates after the Effective Date but before any Services are activated, the early termination fee shall equal the amount of non-recurring charges set forth on the first page of this Agreement plus an amount equal to two months’ Monthly Recurring Charges, or (b) if Customer terminates after the Services are activated, the sum of (i) eighty percent (80%) of any Monthly Recurring Charges due for Services for the months remaining in the then-current term, plus (ii) for any Service with usage-based Fees, eighty percent (80%) of the Customer’s average monthly usage for the three (3) month period immediately prior to the month in which the termination occurs (or such lesser period if fewer than three (3) months of Service were utilized), multiplied by the number of months remaining prior to the natural expiration date of the then-current term plus (iii) if Customer received a discount, incentive, or waiver of Fees for the Equipment or installation, training or support for the Services, the amount discounted, granted as an incentive and/or waived. The early termination fee is due and payable in full on the effective date of termination. The parties agree that ESP’s damages in the event of early termination of this Agreement by the Customer would be difficult or impossible to ascertain and, therefore, the early termination fee is liquidated damages, not a penalty, and that this provision represents a reasonable allocation of the risk and the basis for the pricing and Services offered hereunder.
7. TERMINATION FOR CAUSE; SUSPENSION.
7.1. ESP may terminate this Agreement for cause immediately upon written notice to Customer if Customer terminates the authorization for ESP to charge its credit card, if any charge by ESP to Customer’s authorized credit card is declined or reversed, Customer’s authorized credit card expires and Customer has not provided a replacement card, or in case of any other non-payment of account charges. Additionally, and at ESP’s sole discretion, if Customer fails to pay any amount required under the Agreement when payment is due, ESP may suspend any or all Services upon notice to Customer, and if payment is not received from Customer within the time period set forth in the notice of suspension, ESP may charge Customer reconnection fees or require a security deposit prior to any reconnection of the Service.
7.2. ESP may terminate this Agreement for cause immediately upon written notice to Customer if ESP determines, in its reasonable discretion, that Customer has violated Sections 9.1, 9.2, 9.3, 9.4 or 9.7 of this Agreement. In such event, Customer shall pay ESP the early termination fee set forth in Section 6 of this Agreement, as liquidated damages for Customer’s breach and not as a penalty.
7.3. ESP may also terminate this Agreement due to a breach by Customer of any of its representations, warranties, or obligations under this Agreement which breach is not cured within thirty (30) days following receipt of written notice thereof.
7.4. ESP may terminate this Agreement upon sixty (60) days written notice to Customer, if ESP should exit all or part of the business of providing the Services under this Agreement.
7.5. Either party may terminate this Agreement if the other party ceases to do business in the normal course, becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) days, or makes an assignment for the benefit of creditors.
7.6. Articles 6 and 7 set forth the sole and exclusive rights of each party to terminate this Agreement, and except as expressly set forth in Article 6 or Article 7, no cause, event, failure or other occurrence shall give either Party any right to terminate this Agreement.
8. EFFECT OF TERMINATION OR EXPIRATION; RETURN OF EQUIPMENT . Except as otherwise specified in this Agreement, upon any termination or expiration of this Agreement, all rights and obligations granted hereunder shall cease and be of no further force and effect and Customer shall cease all use of the Services. Customer will receive written notice from ESP establishing a time period within which Customer must allow ESP to pick up all its equipment from the Customer’s premises, and any Equipment not timely returned will be invoiced to the Customer in full. Customer shall pay to ESP any and all outstanding amounts owed to ESP as of the date of expiration or termination, including the early termination fee if applicable. Customer remains fully liable after termination or expiration of this Agreement to ESP for all Fees and any costs incurred by ESP to collect such amounts, including, without limitation, collection costs and attorney’s fees.
9. PERMITTED USE OF SERVICES AND EQUIPMENT; CUSTOMER OBLIGATIONS.
9.1. Customer shall only use the Services and Equipment for authorized and legal purposes, consistent with all applicable laws, regulations and rights of others and in accordance with ESP’s standard operating procedures then in effect. Without limitation of the foregoing, Customer shall not use the Service and Equipment for any conduct that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or for transmission of any bulk unsolicited commercial communications or other “junk” or “spam” communications. If ESP determines that Customer has used the Service or Equipment in violation of this Section 9.1, ESP may forward the relevant communications and other information, including Customer’s identity, to the appropriate governmental authorities for investigation and prosecution. Customer hereby consents to ESP’s disclosure of any such information to governmental authorities.
9.2. Customer shall not use the Services or the Equipment outside of the United States or Canada.
9.3. Customer shall not tamper with the Equipment, including by changing the electronic serial number or equipment identifier of Equipment or performing a factory reset of the Equipment.
9.4. Customer shall not attempt to hack, interfere with or disrupt any part of the Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services). Customer shall not allow access to or use of the Services or Equipment by anyone other than Customer’s authorized personnel.
9.5. Customer shall notify ESP immediately, in writing or by calling ESP’s published support number, if Customer becomes aware that its Services or Equipment are being stolen, fraudulently used or otherwise being used in an unauthorized manner. The notification must include Customer’s account number and a detailed description of the Equipment or Service theft, fraudulent use or unauthorized use. Until ESP receives receive notice of the theft, fraudulent use or unauthorized use, Customer will be liable for all use of the Service and any and all stolen, fraudulent or unauthorized use of the Service.
9.6. If Customer has purchased an Unlimited Plan, Customer shall only use the Services and Equipment for normal residential or business use, and except as expressly authorized on the face of the SAF, shall not use the Services or Equipment for call centers, continuous or extensive call forwarding, autodialing, telemarketing (including without limitation charitable or political solicitation and/or polling), or other high volume or multi-person calling or faxing purposes.
9.7. Excessive Use of Unlimited Plans is prohibited. ESP reserves the right to review and monitor Customer’s usage of Services at any time to calculate Excessive Use and compliance with this Agreement. Customer agrees that if Customer commits Excessive Use, ESP may modify, suspend, terminate, disconnect or take any other reasonable action to prevent continued Excessive Use (a “Plan Modification”), including charging Customer on per minute basis, at ESP’s then current per minute rates, for any Excessive Use, or converting Customer’s Unlimited Plan to a metered plan. Customer hereby agrees to pay ESP, and hereby authorizes ESP, at ESP’s sole discretion, to invoice Customer or charge Customer’s credit card on file for any additional fees, charges and penalties related to any Plan Modification.
9.8. Customer shall be liable for the actions or omissions of its employees, agents, or any other person using or accessing Customer’s Services or Equipment, including any breach of this Agreement by any such user.
9.9. ESP shall not be responsible for any content distributed or transmitted by Customer in connection with the Services. ESP reserves the right to remove content that does not comply with this Agreement. ESP’s action or inaction under this Section will not constitute any review, waiver, authorization or approval of Customer’s use or content.
10.1. Customer’s Indemnification. Customer will indemnify, defend, and hold harmless ESP, its members, officers, employees, subsidiaries, suppliers, vendors, independent contractors, affiliates and assignees (each, an “Indemnified Party”), from and against any and all claims, demands, costs, expenses, losses, liabilities and damages (including, but not limited to, attorneys’ fees and costs of suit) incurred by such Indemnified Party arising from or related to (a) the use of the Services by Customer, its users or any other third party permitted by, or that obtains access from, the Customer and makes use of the Services, (b) a breach by Customer of its obligations under this Agreement, or (c) any third party claim alleging that any content transmitted or distributed by Customer through the Services, misappropriates or violates in any manner any intellectual property or other proprietary rights of any third party, including without limitation patent, trademarks, copyright, trade secrets, moral rights and rights of privacy.
10.2. Mechanism of Indemnification. If any Indemnified Party receives a claim with respect to which it is entitled to indemnification under this Agreement, the Indemnified Party will notify Customer; provided, however, that the failure to give such notice will not affect the rights of the Indemnified Party hereunder except to the extent that such failure has materially prejudiced Customer’s ability to defend such claim. Customer may use counsel of its own choosing, provided such counsel is reasonably acceptable to the Indemnified Party, and the Indemnified Party will reasonably cooperate with Customer in the defense of such claim, including the settlement of the matter; provided, that no settlement or compromise shall be made without the consent of the Indemnified Party. Customer will keep the Indemnified Party advised of the progress of any proceedings related to such claim, and of any settlement discussions or proposals with respect thereto.
11. EQUIPMENT RETURN. Customer may return the Equipment to ESP only if Customer purchased or leased such Equipment directly from ESP and Customer has received maintenance services for such Equipment from ESP for the entire time owned by Customer.
12. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES. ESP, ITS SUPPLIERS AND INDEPENDENT CONTRACTORS, AND THEIR AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, SUCCESSORS AND ASSIGNS (AS USED IN THIS SECTION 12, “ESP”) SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE TYPE OF ACTION, INCLUDING THOSE ARISING OUT OF BREACH OF CONTRACT, TORT OR ANY OTHER CAUSE OF ACTION, EVEN IF ESP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ESP’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID, DURING THE THREE (3) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, BY CUSTOMER TO ESP FOR THE SERVICE GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, ESP MAKES NO REPRESENTATIONS AND WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES, SOFTWARE, OR EQUIPMENT PERFORMED, PROVIDED OR USED IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. ESP DOES NOT WARRANT THAT THE USE OF OR ACCESS TO THE SERVICES, SOFTWARE, OR EQUIPMENT SHALL BE WITHOUT INTERRUPTION, ERROR FREE, THAT SUCH ERRORS WILL BE CORRECTED, DELAY, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ESP WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DIRECT OR INDIRECT LOSSES OF ANY KIND ARISING FROM, OR RELATED TO, ANY RIGHTS, LICENSES, SERVICES, SOFTWARE, OR EQUIPMENT PROVIDED BY CUSTOMER OR ANY OTHER PARTY ON CUSTOMER’S BEHALF (INCLUDING, BUT NOT LIMITED TO, INTERNET SERVICE PROVIDERS OR INDEPENDENT CONTRACTORS), OR FOR CUSTOMER’S RELIANCE ON ANY SUCH RIGHTS, LICENSES, SERVICES, SOFTWARE, OR EQUIPMENT. THE RECOVERY OF DIRECT DAMAGES AS LIMITED HEREBY SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT. ESP SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO ESP’S OR CUSTOMER’S TRANSMISSION FACILITIES, PREMISES, OR EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF ESP’S OR ITS SERVICE PROVIDER’S OR VENDORS’ NEGLIGENCE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND CUSTOMER ASSUMES THE RISK THEREFOR.
13. MEDIA RELEASES. Except as expressly permitted by law or this Agreement or with the other party’s prior written consent, neither party shall use any trademark, service mark, trade name, or other name or logo of the other party in any way, including without limitation in any press release, marketing materials or other publicity. Neither party shall issue any public statement or announcement concerning this Agreement or the Services granted thereunder or about the parties’ discussions concerning such subject matter without the prior written consent of the other party. Notwithstanding the forgoing, Customer grants ESP the right to use Customer’s name and logo to identify Customer as a customer of ESP’s Services in ESP’s marketing-related materials.
14. DISCLOSURE OF INFORMATION. ESP may disclose Customer’s identity, communications and other information (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that such party uses reasonable efforts to notify the other party in advance of such disclosure so as to permit the other party to request confidential treatment or a protective order prior to such disclosure, (ii) on a “need-to-know” basis to its employees and other personnel, financial advisors, lawyers or other advisors, (iii) to third party consultants or other agents solely in connection with the exercise of its rights or the performance of its obligations under this Agreement or any Addendum, provided that such disclosure is pursuant to a non-disclosure agreement on terms at least as restrictive as those in this Agreement and that restricts the further disclosure of the other party’s Confidential Information; and (iv) as otherwise expressly set forth herein.
15. FORCE MAJEURE. Except with regard to payment of monies due, neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement or any SAF, where such delay or failure arises by reason related to or arising out of any occurrence outside of the reasonable control of the affected party (each a “Force Majeure Event”), including without limitation any act of nature, war, terrorism, civil disorder, labor unrest, government regulation, failure or delay in transportation or distribution, or other circumstance beyond such party’s control that makes it inadvisable, illegal or impossible to perform its obligations under this Agreement or any Addendum. Additionally, ESP shall not be liable for cable or fiber cuts, satellite, broadcast, telecommunications or power disruptions, outages, or interruptions, any public or other Internet outages or computer failure that are not in ESP’s control or any similar events or occurrences related to or arising out of any act of nature or any act or omission of a third-party, including without limitation any satellite service provider or operator, whether due to human error, technical failure, accident or otherwise.
16. MISCELLANEOUS. No waiver under this Agreement or any Addendum shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. ESP’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No change, amendment or modification of any provision of this Agreement or any Addendum shall be valid unless set forth in a written instrument signed by both parties. If any provision of this Agreement or any Addendum is invalid, illegal or unenforceable in any jurisdiction, such provision shall be deemed amended to conform to applicable laws so as to be valid and enforceable, or, if it cannot be so amended without materially altering the intention of the parties, it shall be stricken, and the remainder of this Agreement or such Addendum shall remain in full force and effect. Customer shall not assign this Agreement, or any right, interest or benefit under this Agreement or any Addendum, nor delegate any of its duties or obligations hereunder, without the prior written consent of ESP, and any change of ownership or control of Customer shall be deemed an assignment hereunder. Section headings and captions are for convenience only and are not part of this Agreement or any Addendum. The terms of Sections 1, 8, 10, 11 and 16 of this Agreement and any other provisions of this Agreement that, by their terms or context, are intended to survive shall survive termination or expiration of this Agreement. The parties act as independent contractors, and do not intend to create a joint venture, partnership or any agency relationship between themselves or their respective successors in interest. Neither party will have any authority to create or assume, in the name of or on behalf of the other party any obligation, express or implied, nor to act or purport to act as an agent or legally empowered representative of the other party hereto for any purpose whatsoever. This Agreement may be executed in counterparts (including by facsimile or authenticated electronic transmission), each of which shall be deemed an original and all of which together shall constitute one and the same document. The parties acknowledge they have jointly negotiated this Agreement with access to adequate counsel and neither shall be deemed the author of this Agreement or any Addendum for any purposes of construction or interpretation. This Agreement and each Addendum will be governed and interpreted by the laws of Commonwealth of Pennsylvania, without regard to its conflict of law rules. This Agreement sets forth the entire agreement of the parties and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. 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. To the extent court action is initiated in connection with this Agreement, Customer hereby submits to the exclusive jurisdiction of the courts located within the Commonwealth of Pennsylvania and waive any objection as to venue or inconvenient forum.
SERVICE LEVELS FOR VOICE SERVICES
(a) Affected Service – a Service experiencing a Service Outage or a Service Degradation for which a Trouble Ticket has been opened.
(b) Burn-in Period – with respect to any Service, means the thirty (30) day period immediately following installation and activation of such Service.
(c) Mean Time to Respond – the length of time between the Customer opening a Trouble Ticket and the Customer receiving acknowledgment from ESP of such Trouble Ticket, calculated as an average of all response times for the Customer’s Trouble Tickets in the preceding calendar month.
(d) Service Availability – a percentage, calculated as (i) the number of hours in a month minus scheduled downtime for the Services for maintenance or testing purposes during such month minus the number of minutes of Service Outages during the month, divided by (ii) the number of minutes during the month minus scheduled downtime for the Services for maintenance or testing purposes during the month.
(e) Service Outage – a period of time during which Customer experiences a complete loss of Service and is unable to use the Services to place outbound calls or receive inbound calls. The Service Outage is deemed to begin when the Customer opens an appropriate Trouble Ticket and end when the Customer is again able to place outbound calls and receive inbound calls.
(f) Service Degradation – a period of time during which Customer is able to place or receive calls using the Services but experiences a degradation of quality in this Services, including circuit bouncing, audio fidelity problems, or latency.
(g) Severity 1 –All Service Outages and Service Degradations that result in Customer’s inability to receive inbound calls or complete outbound calls using the Services.
(h) Severity 2 – Service Degradations that substantially affect performance or use of the Services and for which a workaround is not available, but do not result in Customer being unable to receive inbound calls or complete outbound calls.
(i) Severity 3 – Service Degradations that do not substantially affect performance or use of the Services or for which and for which a workaround is available, including bugs or non-conformities.
(j) Trouble Ticket – a record of a Service Outage or Service Degradation and its subsequent resolution, as recorded by ESP.
2. Generally. This Exhibit I describes target performance standards for the Services. If the Services fail to meet the performance standards described below, Customer shall be eligible for a Service Credit, subject to the qualifications contained in this Agreement (including in this Exhibit I). If Customer is due a Service Credit, ESP shall apply such Service Credit against the Monthly Recurring Charges for the Affected Service on Customer’s next monthly invoice. ESP shall not apply any Service Credit against Fees for any Service other than the Affected Service, and shall in no event shall ESP owe Customer any refund due to a Service Credit. Service Credits are Customer’s sole and exclusive remedy for the Services’ failure to meet the performance standards set forth in this Exhibit I, and for any Service Degradations and Service Outages..
3. Opening Trouble Tickets; Qualification for Service Credits. To be eligible for a Service Credit, Customer must open a Trouble Ticket to report the Service Outage or Service Degradation to ESP at the time of occurrence. Trouble Tickets are opened by i) for Severity 1 cases, the Customer calling Customer Care at 855-377-8647 for all other cases, by e-mailing Customer firstname.lastname@example.org or opening a ticket through the ESP website at https://support.espdelivers.com during business hours. Customer must then e-mail email@example.com within thirty (30) days of the closing of the Trouble Ticket to request a Service Credit. The e-mail should read “Request for SLA Credit” in the subject line, and give a short explanation of the credit due and the corresponding Trouble Ticket number. If Customer’s account has a past-due balance, review of any credit requests will be delayed until the past-due amount is resolved.
4. Performance Standards and Service Credits
(a) Mean Time to Respond
If ESP responds less than sixty (60) minutes but more than thirty (30) minutes after the Trouble Ticket is opened, the Service Credit is fifteen percent (15%) of the Monthly Recurring Charges for the Affected Service.
Thirty (30) minutes
If ESP responds less than ninety (90) minutes but more than sixty (60) minutes after the Trouble Ticket is opened, the Service Credit is twenty percent (209%) of the Monthly Recurring Charges for the Affected Service.
If ESP responds more than ninety (90) minutes after the Trouble Ticket is opened, the Service Credit is thirty percent (30%) of the Monthly Recurring Charges for the Affected Service.
Two (2) hours
If ESP responds more than two (2) hours after the Trouble Ticket is opened, the Service Credit is fifteen percent (15%) of the Monthly Recurring Charges for the Affected Service.
Twenty-four (24) hours
If ESP responds more than twenty-four (24) hours after the Trouble Ticket is opened, the Service Credit is fifteen percent (15%) of the Monthly Recurring Charges for the Affected Service.
(b) Service Availability.
The Services shall have Service Availability of ninety-nine and nine tenths percent (99.9%). The Service Credit available for failure to achieve the Service Availability performance standard is 1/30th of the Monthly Recurring Charge for the Affected Service for every hour thereof by which the Services fail to achieve Service Availability of 99.9%.
5. Calculation of Service Credits. The calculation of the performance standards and of Service Credits is based on monthly billing intervals. Where the Affected Service is part a combined services that is billed as a single product, the Service Credit will only apply to the Affected Service portion of such combined service. The Affected Service portions of such combined service will be determined in ESP’s sole discretion. The aggregate Service Credits received by Customer will not exceed either (a) fifteen percent (15%) of the Customer’s Monthly Recurring Charges for all Services for the twelve month period beginning on the activation date of the Services (or the anniversary of such activation date) and ending twelve months later or (b) thirty percent (30%) of the Monthly Recurring Charges for the Affected Service for a single month.
6. Exclusions. Customer shall not be entitled to any Service Credits for Service Degradations, Service Outages, or failures to meet the performance standards set forth in this Exhibit I resulting from one or more of the following:
(a) Any act or omission on the part of the Customer or any third party, contractor or vendor (including any local access provider), including Customer’s failure to release a Service for testing and repair, Customer’s failure to provide access to its Equipment or premises for testing and repair, or Customer’s delay in responding to ESP requests for information or assistance with regard to a Trouble Ticket.
(b) The failure of services, equipment, software, networks, network connections or facilities not provided by ESP.
(c) Scheduled maintenance by ESP, its underlying carriers, or the Customer.
(d) Any event or occurrence that results in “No Trouble Found” resolution to Trouble Tickets.
(e) Any event or outage lasting less than 60 seconds in duration.
(f) Any Force Majeure Event.
(g) Trouble Tickets associated with installations during the Burn-in Period.