Exucom SENFUSE Network Terms of Service (updated 10/1/2019)
End of Life Terms of Service can be found here
1.AGREEMENT
(a) Agreement. By signing to accept the terms of this agreement (“Agreement”) it creates a contract between Exucom Systems Inc or such affiliate (its subsidiaries, affiliates and service providers, together “EXUCOM”) and the customer indicated on this document (“Customer”).
2. SERVICES
(a) Services and Equipment and Software. Subject to the terms and conditions of this Agreement, during the term of this Agreement, the Customer’s faxes will be sent and received thru the Service. Customer will be wholly responsible for providing any customer premises equipment and licensing any software necessary for Customer to utilize the Services, including a server and desktop computer equipment and Internet access. The Services may only be used with EXUCOM approved software EXUCOM approved software must be under a current vendor support and maintenance plan during the Term.
(c) Service Maintenance. Advance indication of scheduled down time, if any, will be sent to Customers in advance. EXUCOM reserves the right to immediately implement critical security patches, critical fixes or software/hardware modifications/updates that repair or prevent a Service impacting situation.
3. ORDER FORM
(a) Contract Term: Section 1 of the Order Form provides the duration of contract term as defined in section 3(f).
(b) Price. Customer agrees to pay the price indicated for the Services provided in the SENFUSE Network Order Form (the “Order Form”). EXUCOM may change the prices for the Services at any time due any increases in fees as referenced above shall be effective 30 days after Customer has received notification of the increase. Customer must pay all invoices in currency quoted by EXUCOM.
(b.i) OFF-Network: The Order Form provides specific pricing for OFF-Network pricing which is defined as faxes transmitted outside of the etherFAX network via standard fax protocol.
(b.ii) IN-Network: The Order Form provides specific pricing for IN-Network pricing which is defined as faxes transmitted inside of the etherFAX network and are marked as SEN
(b.iii) Minimum Monthly Commitment: The Order Form provides a minimum monthly financial commitment for the customer for the term of the Contract as defined in Section 3(f).
(b.iiii) Additional Rate Schedule: The Order Form provides pricing details for all other applicable fees that may be incurred during use of the service.
(c) Payment. Customer must pay all invoices within thirty (30) days of invoice date. Payment of EXUCOM invoices shall not be dependent upon a Customer generated purchase order. If a Customer desires for an EXUCOM invoice to reference a Customer purchase order, Customer shall deliver to EXUCOM a written purchase order within ten (10) days of the Effective Date set forth on the first page of this Agreement. If the Order Form sets out a monthly or annual minimum payment obligation, then Customer will be invoiced for the minimum amount if that amount is not met by Customer usage. If there is any inconsistency or conflicting terms between this Agreement and a Customer purchase order, this Agreement shall prevail. All purchase orders must be signed on behalf of the Customer by its authorized representative. Customer will pay interest at the rate of 1.5% per month, or the highest rate permitted by applicable law, whichever is less, with respect to any amounts not paid when due under this Agreement. All invoices are fully earned when due and non-refundable when paid. Customer will reimburse EXUCOM for all costs, including reasonable attorneys’ fees, court costs, bank charges and other consequential fees and expenses if EXUCOM utilizes the services of a collections agency or attorney to collect any amounts due and unpaid hereunder. If any check tendered by Customer is returned for insufficient funds, Customer will pay, in addition to the invoice amount and any interest due, an NSF fee equal to the greater of $30 or five percent of the amount of the check, whichever is greater.
(d) Customer Obligations. Customer: (i) must follow all rules and requirements pertaining to the Services as set forth in any documentation or other notices provided by EXUCOM to Customer, (ii) is solely responsible for the hardware, software and network connectivity required by Customer to connect to, and utilize, the Services, (iii) may not utilize the Services in connection with or in furtherance of any activity that violates applicable law or that violates the intellectual property rights of any third party or that creates in any third party a right of action against any person, (iv) may not utilize the Services in any manner that violates EXUCOM’s Customer Conduct Policy (https://www.senfuse.com/subscriber-conduct-policy.html) (v) may not reverse engineer, decompile or attempt to derive the source code of any software provided by EXUCOM in connection with the Services, and (vi) may not rent, lease or resell the Services unless Customer is party to a written agreement with EXUCOM that expressly permits such activity.
(e) Taxes. Customer will pay, and EXUCOM reserves the right to collect in arrears, all sales, use, excise or other transaction taxes or similar charges imposed or assessed on Customer by any foreign, federal, state, commonwealth, provincial, county, or other government authority upon or with respect to the Services provided under this Agreement. If Customer claims exemption from any such taxes or charges, Customer must provide Company in advance with a current, valid exemption certificate for the applicable tax or charge.
(f) Duration. The Agreement shall begin on the date executed by both EXUCOM and Customer and shall continue for the length of time set out in an Order Form (“Term”). This Agreement will automatically renew at the end of the initial Term for successive additional one year renewal Terms unless either party gives the other party written notice of non-renewal at least thirty (90) days prior to the end of then-current Term.
(f.i) EXUCOM may terminate this Agreement by giving prior written notice to Customer if (A) Customer fails to pay an invoice when due, (B) Customer violates any of its obligations under this Agreement, (C) Customer violates applicable law through or in connection with its utilization of the Services, or (D) as provided in Section 7(d) of these Agreement, (E) Exucom no longer offers the services
(f.ii) Customer Early Termination. Upon termination of this Agreement, Customer's right to use the Services immediately ceases and the Service will not be obligated to provide fax communications to Customer or its End Users. The Customer will be charged with an early termination fee of 25% of the remaining contracted amount for the then current term, unless the Agreement is terminated within 30 days of the Contract Start Date.
4. DATA SECURITY AND PRIVACY
(a) Security of Data. The EXUCOM network has implemented a strong security defense to prevent malicious eavesdropping of sensitive information and other nefarious attacks on its overall operation. EXUCOM provides its customers protection by adopting security best practices that include encryption and other security mechanisms to assure customer information and data in transit remains protected at all times.
(b) Privacy. The fax images sent by the Customer are not stored by the Service and the Customer is responsible for maintaining the fax images. Faxes received by the Service are stored only momentarily and once delivered to the Fax Server at the Customer’s site; the fax is deleted utilizing FIPS 140-2 compliance standards
5. NUMBER OWNERSHIP AND PORTING RIGHTS
(a) Customer understands that the Service , as owner of all Service telephone number(s), will not be liable for any damages whatsoever arising out of any re-assignment of any Service telephone number following termination of this Agreement or deletion by Customer of such telephone number from Customer's account. Should the Customer wish to cancel the Service Agreement and retain the fax numbers provided by the Service, Customer shall provide written notice at least ninety (90) days in advance.
(b) At Customer’s request (subject to support by the telecommunications carriers) EXUCOM will assist customer in porting U.S. fax numbers to EXUCOM’s network for a fee set by EXUCOM. For number porting in all other countries, number porting fees will be quoted on a case by case basis provided number porting is supported in-country. As part of the process to port numbers, EXUCOM will obtain a firm order commitment date (“FOC Date”) from the telephone carrier. The FOC Date is the date by which the porting of the numbers will occur. If EXUCOM has received a FOC Date for a number, and (i) if Customer cancels a number that is to be ported within 48 hours of the FOC Date (the “FOC Date Window”), Customer agrees to pay EXUCOM a cancellation fee of $75 per number that is cancelled; and (ii) if Customer cancels a number to be ported after a FOC Date is requested but before the FOC Date Window begins,, Customer agrees to pay EXUCOM a cancellation fee of $55 per number that is cancelled . (b) With respect to any inbound fax number provided by EXUCOM, or ported to EXUCOM from Customer, Customer shall have the right for a fee to port any such number to a carrier or other service provider of Customer's choosing. For U.S. numbers, EXUCOM agrees, at EXUCOM’s standard fee to Customer per U.S. number, to take all practical steps to facilitate an EXUCOM request to the U.S. based carrier or service provider to port numbers, including without limitation to execute all necessary documents to facilitate the porting process. For number porting in countries outside the United States, EXUCOM and Customer will mutually agree in writing to a fee for EXUCOM to undertake additional practical steps to facilitate number porting to the Customer’s chosen carrier or service provider, provided that number porting is supported in-country.
6. INTELLECTUAL PROPERTY
(a) EXUCOM Intellectual Property. As between EXUCOM and Customer, EXUCOM owns all patent, copyright, trademark, trade secret and other intellectual property rights that may exist (i) in the Services, any EXUCOM equipment and network that may be utilized to provide the Services, (ii) any software or hardware provided by EXUCOM to Customer to facilitate Customer’s utilization of the Services, (iii) any domain names provided by EXUCOM in connection with the provision of the Services, and (iv) any information, data, trends, analyses, metadata or other data which may be derived from any of the foregoing that is derived or created by EXUCOM by reference to the Services, EXUCOM’s network and Customer’s usage of the EXUCOM Services (all “EXUCOM Transactional IP”).
(b) Customer Intellectual Property. As between Customer and EXUCOM, Customer owns or has the right to use, all patent, copyright, trademark, trade secret and other intellectual property rights that may exist (i) in any software or hardware provided by Customer in connection with Customer’s use of the Services, (ii) in any data or communications transmitted or processed by Customer through the Services (“Customer Content”), (iii) in any domain names provided by Customer in connection with the utilization of the Services, and (iv) in any data that identifies Customer or any of Customer’s employees or any of Customer’s vendors, customers or trading partners (all “Customer Transactional IP”).
(c) Mutual Respect. EXUCOM agrees to assert no claim of ownership over the Customer Transactional IP and Customer agrees to assert no claim of ownership over the EXUCOM Transactional IP.
7. LIMITATION OF LIABILITY
(a) EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH IN AN ORDER FORM, EXUCOM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND EXUCOM HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. EXUCOM DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. EXUCOM CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. EXUCOM WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEMS OR NETWORKS.
(b) NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER FORM, OR (EXCEPT AS PROVIDED IN SECTION 7(D)) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
(c) IN NO EVENT WILL EXUCOM’S LIABILITY IN CONNECTION WITH THE SERVICES OR ANY ORDER FORM, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO EXUCOM DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
(d) The limitations contained in Sections 7(b) and (c) apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct.
8. MISCELLANEOUS
(a) Independent Contractor. EXUCOM and Customer are independent contractors. Neither EXUCOM nor Customer shall have any authority to bind the other in any manner.
(b) Governing Law; Jurisdiction. This Agreement shall be governed by the laws of Illinois excluding its conflicts or choice of law rules. Except for injunctive relief required by EXUCOM to protect its intellectual property, all related litigation shall occur in the courts located in such jurisdiction. Customer may bring claims against EXUCOM only in Customer’s individual capacity and not as a plaintiff or class member in any purported class action or representative proceeding.
(c) Headings. The headings herein are for convenience only and are not part of this Agreement.
(d) Entire Agreement; Amendments. This Agreement, together with each written and signed Order Form, and each written and signed addendum, sets forth the entire agreement between EXUCOM and Customer with respect to the subject matter hereof, and supersedes all prior related oral and written agreements and understandings between the parties. Neither party is bound by or is liable for any alleged representation, promise, or inducement not expressly stated in this Agreement.
(e) Severability. Should any provision of this Agreement be deemed contrary to applicable law or unenforceable by any court of competent jurisdiction, the provision shall be considered severed from this Agreement but all remaining provisions shall continue in full force.
(f) Notices. Any notice under this Agreement that must be given by a party in writing is deemed effective when sent via Email, FedEx or other commercial courier to the other party’s address specified at the beginning of this Agreement or on the most recent Order Document.
(g) Waiver. No waiver of any provision of this Agreement is binding on either party unless set out in a mutually signed written waiver. This Agreement shall only be amended by a written document signed by EXUCOM and Customer stating such document is an amendment or an addendum hereto. This Agreement may be assigned by EXUCOM to an Affiliate of EXUCOM or to a successor-in-interest/title of EXUCOM without consent. This Agreement shall not be assigned by Customer, in whole or in part, without EXUCOM 's prior written consent.
(h) Non-Assignment; No Third-Party Rights. Customer may not assign or transfer this Agreement or any rights hereunder, and any attempt to do so is void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of, the parties and their respective successors and assigns. This Agreement is for the sole benefit of the parties (and the End Users) and there are no third party beneficiaries.
(i) Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
(j) Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, EXUCOM s records of such execution shall be presumed accurate unless proven otherwise.
(k) Force Majeure. Except for payment obligations (including License Fees, maintenance and support fees, and Applicable Taxes) or any obligations relating to the protection of or restrictions applicable to the other party's confidential information or intellectual property, neither party shall be liable to the other or be in breach of this Agreement due to any failure or delay in performance of its obligations to the extent the failure or delay arises (and only for the duration that the affected party is precluded from performing) as a result of acts of God, fire, disaster, explosion, vandalism, storm, adverse weather conditions, strikes, labor disputes or disruptions, epidemics, wars, national emergencies, riots, civil disturbances, shortages of materials, actions or inactions of government authorities, terrorist acts, lockout, work stoppages or other labor difficulties, border delays, failures or interruptions of utilities or telecommunications equipment or services, system failures or any other cause that is beyond the reasonable control of that party.
(l) Government Regulations. Software, including Documentation and technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software, Documentation and/or technical data.
(m) Marketing. Customer agrees that during the term of this Agreement EXUCOM may publicly refer to Customer, orally and in writing, as a customer of EXUCOM. Any other public reference to Customer by EXUCOM requires the written consent of Customer.
(n) Telephone Monitoring. To ensure EXUCOM’s customers receive quality service, EXUCOM randomly may monitor and record phone calls between EXUCOM’s customer service and technical support personnel and EXUCOM’s customers.
(o) Publicity. EXUCOM may issue a joint press release shortly after execution of this Agreement, provided that the release is first approved by Customer, such approval not to be unreasonably withheld. In addition, you agree that EXUCOM may include Customer’s name (the name of the company) in one or more lists of customers that EXUCOM distributes or makes available.
(p) The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, restricts the use of the facsimile machine to deliver unsolicited advertisements. Specifically, the TCPA prohibits the use of “any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.” The TCPA applies only to those facsimile messages that constitute “unsolicited advertisements.” The statutory prohibition applies to such advertisements sent both to residential and business facsimile numbers.
(a) Agreement. By signing to accept the terms of this agreement (“Agreement”) it creates a contract between Exucom Systems Inc or such affiliate (its subsidiaries, affiliates and service providers, together “EXUCOM”) and the customer indicated on this document (“Customer”).
2. SERVICES
(a) Services and Equipment and Software. Subject to the terms and conditions of this Agreement, during the term of this Agreement, the Customer’s faxes will be sent and received thru the Service. Customer will be wholly responsible for providing any customer premises equipment and licensing any software necessary for Customer to utilize the Services, including a server and desktop computer equipment and Internet access. The Services may only be used with EXUCOM approved software EXUCOM approved software must be under a current vendor support and maintenance plan during the Term.
(c) Service Maintenance. Advance indication of scheduled down time, if any, will be sent to Customers in advance. EXUCOM reserves the right to immediately implement critical security patches, critical fixes or software/hardware modifications/updates that repair or prevent a Service impacting situation.
3. ORDER FORM
(a) Contract Term: Section 1 of the Order Form provides the duration of contract term as defined in section 3(f).
(b) Price. Customer agrees to pay the price indicated for the Services provided in the SENFUSE Network Order Form (the “Order Form”). EXUCOM may change the prices for the Services at any time due any increases in fees as referenced above shall be effective 30 days after Customer has received notification of the increase. Customer must pay all invoices in currency quoted by EXUCOM.
(b.i) OFF-Network: The Order Form provides specific pricing for OFF-Network pricing which is defined as faxes transmitted outside of the etherFAX network via standard fax protocol.
(b.ii) IN-Network: The Order Form provides specific pricing for IN-Network pricing which is defined as faxes transmitted inside of the etherFAX network and are marked as SEN
(b.iii) Minimum Monthly Commitment: The Order Form provides a minimum monthly financial commitment for the customer for the term of the Contract as defined in Section 3(f).
(b.iiii) Additional Rate Schedule: The Order Form provides pricing details for all other applicable fees that may be incurred during use of the service.
(c) Payment. Customer must pay all invoices within thirty (30) days of invoice date. Payment of EXUCOM invoices shall not be dependent upon a Customer generated purchase order. If a Customer desires for an EXUCOM invoice to reference a Customer purchase order, Customer shall deliver to EXUCOM a written purchase order within ten (10) days of the Effective Date set forth on the first page of this Agreement. If the Order Form sets out a monthly or annual minimum payment obligation, then Customer will be invoiced for the minimum amount if that amount is not met by Customer usage. If there is any inconsistency or conflicting terms between this Agreement and a Customer purchase order, this Agreement shall prevail. All purchase orders must be signed on behalf of the Customer by its authorized representative. Customer will pay interest at the rate of 1.5% per month, or the highest rate permitted by applicable law, whichever is less, with respect to any amounts not paid when due under this Agreement. All invoices are fully earned when due and non-refundable when paid. Customer will reimburse EXUCOM for all costs, including reasonable attorneys’ fees, court costs, bank charges and other consequential fees and expenses if EXUCOM utilizes the services of a collections agency or attorney to collect any amounts due and unpaid hereunder. If any check tendered by Customer is returned for insufficient funds, Customer will pay, in addition to the invoice amount and any interest due, an NSF fee equal to the greater of $30 or five percent of the amount of the check, whichever is greater.
(d) Customer Obligations. Customer: (i) must follow all rules and requirements pertaining to the Services as set forth in any documentation or other notices provided by EXUCOM to Customer, (ii) is solely responsible for the hardware, software and network connectivity required by Customer to connect to, and utilize, the Services, (iii) may not utilize the Services in connection with or in furtherance of any activity that violates applicable law or that violates the intellectual property rights of any third party or that creates in any third party a right of action against any person, (iv) may not utilize the Services in any manner that violates EXUCOM’s Customer Conduct Policy (https://www.senfuse.com/subscriber-conduct-policy.html) (v) may not reverse engineer, decompile or attempt to derive the source code of any software provided by EXUCOM in connection with the Services, and (vi) may not rent, lease or resell the Services unless Customer is party to a written agreement with EXUCOM that expressly permits such activity.
(e) Taxes. Customer will pay, and EXUCOM reserves the right to collect in arrears, all sales, use, excise or other transaction taxes or similar charges imposed or assessed on Customer by any foreign, federal, state, commonwealth, provincial, county, or other government authority upon or with respect to the Services provided under this Agreement. If Customer claims exemption from any such taxes or charges, Customer must provide Company in advance with a current, valid exemption certificate for the applicable tax or charge.
(f) Duration. The Agreement shall begin on the date executed by both EXUCOM and Customer and shall continue for the length of time set out in an Order Form (“Term”). This Agreement will automatically renew at the end of the initial Term for successive additional one year renewal Terms unless either party gives the other party written notice of non-renewal at least thirty (90) days prior to the end of then-current Term.
(f.i) EXUCOM may terminate this Agreement by giving prior written notice to Customer if (A) Customer fails to pay an invoice when due, (B) Customer violates any of its obligations under this Agreement, (C) Customer violates applicable law through or in connection with its utilization of the Services, or (D) as provided in Section 7(d) of these Agreement, (E) Exucom no longer offers the services
(f.ii) Customer Early Termination. Upon termination of this Agreement, Customer's right to use the Services immediately ceases and the Service will not be obligated to provide fax communications to Customer or its End Users. The Customer will be charged with an early termination fee of 25% of the remaining contracted amount for the then current term, unless the Agreement is terminated within 30 days of the Contract Start Date.
4. DATA SECURITY AND PRIVACY
(a) Security of Data. The EXUCOM network has implemented a strong security defense to prevent malicious eavesdropping of sensitive information and other nefarious attacks on its overall operation. EXUCOM provides its customers protection by adopting security best practices that include encryption and other security mechanisms to assure customer information and data in transit remains protected at all times.
(b) Privacy. The fax images sent by the Customer are not stored by the Service and the Customer is responsible for maintaining the fax images. Faxes received by the Service are stored only momentarily and once delivered to the Fax Server at the Customer’s site; the fax is deleted utilizing FIPS 140-2 compliance standards
5. NUMBER OWNERSHIP AND PORTING RIGHTS
(a) Customer understands that the Service , as owner of all Service telephone number(s), will not be liable for any damages whatsoever arising out of any re-assignment of any Service telephone number following termination of this Agreement or deletion by Customer of such telephone number from Customer's account. Should the Customer wish to cancel the Service Agreement and retain the fax numbers provided by the Service, Customer shall provide written notice at least ninety (90) days in advance.
(b) At Customer’s request (subject to support by the telecommunications carriers) EXUCOM will assist customer in porting U.S. fax numbers to EXUCOM’s network for a fee set by EXUCOM. For number porting in all other countries, number porting fees will be quoted on a case by case basis provided number porting is supported in-country. As part of the process to port numbers, EXUCOM will obtain a firm order commitment date (“FOC Date”) from the telephone carrier. The FOC Date is the date by which the porting of the numbers will occur. If EXUCOM has received a FOC Date for a number, and (i) if Customer cancels a number that is to be ported within 48 hours of the FOC Date (the “FOC Date Window”), Customer agrees to pay EXUCOM a cancellation fee of $75 per number that is cancelled; and (ii) if Customer cancels a number to be ported after a FOC Date is requested but before the FOC Date Window begins,, Customer agrees to pay EXUCOM a cancellation fee of $55 per number that is cancelled . (b) With respect to any inbound fax number provided by EXUCOM, or ported to EXUCOM from Customer, Customer shall have the right for a fee to port any such number to a carrier or other service provider of Customer's choosing. For U.S. numbers, EXUCOM agrees, at EXUCOM’s standard fee to Customer per U.S. number, to take all practical steps to facilitate an EXUCOM request to the U.S. based carrier or service provider to port numbers, including without limitation to execute all necessary documents to facilitate the porting process. For number porting in countries outside the United States, EXUCOM and Customer will mutually agree in writing to a fee for EXUCOM to undertake additional practical steps to facilitate number porting to the Customer’s chosen carrier or service provider, provided that number porting is supported in-country.
6. INTELLECTUAL PROPERTY
(a) EXUCOM Intellectual Property. As between EXUCOM and Customer, EXUCOM owns all patent, copyright, trademark, trade secret and other intellectual property rights that may exist (i) in the Services, any EXUCOM equipment and network that may be utilized to provide the Services, (ii) any software or hardware provided by EXUCOM to Customer to facilitate Customer’s utilization of the Services, (iii) any domain names provided by EXUCOM in connection with the provision of the Services, and (iv) any information, data, trends, analyses, metadata or other data which may be derived from any of the foregoing that is derived or created by EXUCOM by reference to the Services, EXUCOM’s network and Customer’s usage of the EXUCOM Services (all “EXUCOM Transactional IP”).
(b) Customer Intellectual Property. As between Customer and EXUCOM, Customer owns or has the right to use, all patent, copyright, trademark, trade secret and other intellectual property rights that may exist (i) in any software or hardware provided by Customer in connection with Customer’s use of the Services, (ii) in any data or communications transmitted or processed by Customer through the Services (“Customer Content”), (iii) in any domain names provided by Customer in connection with the utilization of the Services, and (iv) in any data that identifies Customer or any of Customer’s employees or any of Customer’s vendors, customers or trading partners (all “Customer Transactional IP”).
(c) Mutual Respect. EXUCOM agrees to assert no claim of ownership over the Customer Transactional IP and Customer agrees to assert no claim of ownership over the EXUCOM Transactional IP.
7. LIMITATION OF LIABILITY
(a) EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH IN AN ORDER FORM, EXUCOM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND EXUCOM HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. EXUCOM DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. EXUCOM CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. EXUCOM WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEMS OR NETWORKS.
(b) NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER FORM, OR (EXCEPT AS PROVIDED IN SECTION 7(D)) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
(c) IN NO EVENT WILL EXUCOM’S LIABILITY IN CONNECTION WITH THE SERVICES OR ANY ORDER FORM, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO EXUCOM DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
(d) The limitations contained in Sections 7(b) and (c) apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct.
8. MISCELLANEOUS
(a) Independent Contractor. EXUCOM and Customer are independent contractors. Neither EXUCOM nor Customer shall have any authority to bind the other in any manner.
(b) Governing Law; Jurisdiction. This Agreement shall be governed by the laws of Illinois excluding its conflicts or choice of law rules. Except for injunctive relief required by EXUCOM to protect its intellectual property, all related litigation shall occur in the courts located in such jurisdiction. Customer may bring claims against EXUCOM only in Customer’s individual capacity and not as a plaintiff or class member in any purported class action or representative proceeding.
(c) Headings. The headings herein are for convenience only and are not part of this Agreement.
(d) Entire Agreement; Amendments. This Agreement, together with each written and signed Order Form, and each written and signed addendum, sets forth the entire agreement between EXUCOM and Customer with respect to the subject matter hereof, and supersedes all prior related oral and written agreements and understandings between the parties. Neither party is bound by or is liable for any alleged representation, promise, or inducement not expressly stated in this Agreement.
(e) Severability. Should any provision of this Agreement be deemed contrary to applicable law or unenforceable by any court of competent jurisdiction, the provision shall be considered severed from this Agreement but all remaining provisions shall continue in full force.
(f) Notices. Any notice under this Agreement that must be given by a party in writing is deemed effective when sent via Email, FedEx or other commercial courier to the other party’s address specified at the beginning of this Agreement or on the most recent Order Document.
(g) Waiver. No waiver of any provision of this Agreement is binding on either party unless set out in a mutually signed written waiver. This Agreement shall only be amended by a written document signed by EXUCOM and Customer stating such document is an amendment or an addendum hereto. This Agreement may be assigned by EXUCOM to an Affiliate of EXUCOM or to a successor-in-interest/title of EXUCOM without consent. This Agreement shall not be assigned by Customer, in whole or in part, without EXUCOM 's prior written consent.
(h) Non-Assignment; No Third-Party Rights. Customer may not assign or transfer this Agreement or any rights hereunder, and any attempt to do so is void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of, the parties and their respective successors and assigns. This Agreement is for the sole benefit of the parties (and the End Users) and there are no third party beneficiaries.
(i) Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
(j) Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, EXUCOM s records of such execution shall be presumed accurate unless proven otherwise.
(k) Force Majeure. Except for payment obligations (including License Fees, maintenance and support fees, and Applicable Taxes) or any obligations relating to the protection of or restrictions applicable to the other party's confidential information or intellectual property, neither party shall be liable to the other or be in breach of this Agreement due to any failure or delay in performance of its obligations to the extent the failure or delay arises (and only for the duration that the affected party is precluded from performing) as a result of acts of God, fire, disaster, explosion, vandalism, storm, adverse weather conditions, strikes, labor disputes or disruptions, epidemics, wars, national emergencies, riots, civil disturbances, shortages of materials, actions or inactions of government authorities, terrorist acts, lockout, work stoppages or other labor difficulties, border delays, failures or interruptions of utilities or telecommunications equipment or services, system failures or any other cause that is beyond the reasonable control of that party.
(l) Government Regulations. Software, including Documentation and technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software, Documentation and/or technical data.
(m) Marketing. Customer agrees that during the term of this Agreement EXUCOM may publicly refer to Customer, orally and in writing, as a customer of EXUCOM. Any other public reference to Customer by EXUCOM requires the written consent of Customer.
(n) Telephone Monitoring. To ensure EXUCOM’s customers receive quality service, EXUCOM randomly may monitor and record phone calls between EXUCOM’s customer service and technical support personnel and EXUCOM’s customers.
(o) Publicity. EXUCOM may issue a joint press release shortly after execution of this Agreement, provided that the release is first approved by Customer, such approval not to be unreasonably withheld. In addition, you agree that EXUCOM may include Customer’s name (the name of the company) in one or more lists of customers that EXUCOM distributes or makes available.
(p) The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, restricts the use of the facsimile machine to deliver unsolicited advertisements. Specifically, the TCPA prohibits the use of “any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.” The TCPA applies only to those facsimile messages that constitute “unsolicited advertisements.” The statutory prohibition applies to such advertisements sent both to residential and business facsimile numbers.