PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THESE TERMS WILL GOVERN YOUR RELATIONSHIP WITH S-NET COMMUNICATIONS, INC. READ SECTION 11 ESPECIALLY CAREFULLY, AS IT PROVIDES FOR A DISPUTE RESOLUTION PROCESS THROUGH A NEUTRAL ARBITRATOR INSTEAD OF THE COURTS.
This MASTER CUSTOMER AGREEMENT (“Agreement”) establishes the terms and conditions under which S-NET will provide communications inter-networking solutions comprised of facilities, networks, systems and/or Hardware (as applicable and as defined herein) (the “Service” or “Solution”) to Customer.
You accept this Agreement when You do any of the following: (a) give S-NET your written or electronic signature, (b) tell S-NET orally or electronically that You accept (i.e. by clicking the “I Accept” button) or (c) use any Service. Documentation by e-mail, facsimile, or other electronic transmission and an electronically stored copy (i.e. PDF or fax) shall serve the same purpose as an original document.
By accepting this Agreement, You acknowledge that You are 18 years of age or older, are competent to enter into a contract with S-NET, and are authorized to obtain Services or make changes to an existing account. You can obtain product-specific terms and conditions by visiting www.snetconnect.com.. This Agreement supersedes any and all prior agreements, written or otherwise, between You and S-NET and all statements or promises made to You by any S-NET employee or agent.
1.1. Service Order. Customer shall order Solutions hereunder by issuing a service order request (“Service Order”) for the type of Solution desired. Each Service Order will describe the Solution that Customer desires to purchase and set forth the price, minimum terms and other details specific to the Solution ordered. No term or condition of any Service Order shall be modified except by written agreement of both Parties. In order to be effective and bind the Parties, a Service Order must be on S-NET’s designated form.
1.2 Creditworthiness. S-NET’s decision to provide Service to Customer may be in part based on Customer’s credit status. Customer’s execution of this Agreement constitutes authorization for S-NET to obtain credit information from any credit bureau or other investigative agency pertaining to Customer’s financial and/or creditworthiness. S-NET may require a deposit as the result of the credit review. Additionally, if Customer’s creditworthiness materially deteriorates following execution of the Agreement, S-NET reserves the right to require a deposit or such other security as S-NET in its good faith analysis determines.
1.3. Firm Order Commitment. S-NET will make commercially reasonable efforts to achieve implementation of the Services within 90 days from the Effective Date. As soon as S-NET can with reasonable accuracy predict a date for the delivery and installation of Solutions and/or commencement of Service under a Service Order, S-NET shall issue a firm order commitment date (“FOC Date”). S-NET shall advise Customer upon its installation of Service and/or the activation of the Service(s). Receipt by Customer of notice from S-NET of installation of a circuit or Customer’s use of a Service shall constitute acceptance of the Service by Customer (“Service Installation”). S-NET shall commence billing for any Solution or Service provided hereunder upon the Service Installation Date unless S-NET is notified in writing within 24 hours that Customer has a material issue with the Service. Under no circumstance shall S-NET be liable to Customer or any third party for damages arising from delays in commencement of Service.
2.1. The term of this Agreement for each Solution shall be as stated in the applicable Service Order. The contractual terms of this Agreement shall govern any Service Order until the expiration, termination, or cancellation of that Service Order.
3.1. The “Hardware” Owned and Provided by S-NET. For certain Services, S-NET shall provide to Customer the physical equipment or components necessary to fully utilize the services provided by S-NET (“Hardware”). For other Services, Customer may lease the Hardware from S-NET for a monthly fee. Customer’s payment obligation for any Hardware will be listed in the applicable Service Order.
3.2. Return of Hardware Owned and Provided by S-NET. If this Agreement is terminated by S-NET for Customer’s breach of the Agreement or by Customer prior to the expiration of the applicable initial term or any subsequent term, and Customer does not return the Hardware for any reason, Customer shall pay S-NET (a) the Replacement Cost of the Hardware, plus (b) the charges stated in Section 4 below. The Replacement Cost shall be the cost incurred by S-NET at the time the Agreement is terminated to replace the Hardware with the same or comparable Hardware.
3.3. Ownership and Use of Hardware Owned and Provided by S-NET. The Hardware is the personal property of S-NET, its designee or a third party provider, notwithstanding that the Hardware, or any part thereof, may be affixed or attached to Customer’s real property or any improvements thereon. Customer has no right or interest to the Hardware other than as provided herein and will hold the Hardware subject and subordinate to the rights of S-NET. Customer will: (a) at its own expense, keep the Hardware free and clear of any claims, liens, and encumbrances of any kind; and (b) make no alterations or affix any additions or attachments to the Hardware, except as approved by S-NET in writing. Customer will not remove, alter or destroy any labels on the Hardware and will allow S-NET the inspection of the Hardware at any mutually agreeable time during normal business hours. As between S-NET and Customer, Customer will bear the entire risk of loss, theft, casualty, destruction or damage to the Hardware following delivery from any cause whatsoever (collectively, “Hardware Loss”) until returned to S-NET. Customer will indemnify, defend and hold harmless S-NET its affiliates, and contractors for any Hardware Loss. Customer agrees to advise S-NET in writing within five business days of any Hardware Loss. In no event will Hardware Loss relieve Customer of the obligation to pay S-NET any amounts due under this Agreement. Customer must comply with all the terms and conditions for maintenance and warranty provided by the manufacturer of the Hardware.
3.4. Equipment Owned or Provided by Customer. Equipment or facilities owned or provided by Customer (“Customer-owned Hardware”) shall be the sole property of Customer. S-Net has no right or interest to Customer-owned Hardware and Customer shall have no obligation to return it to S-NET upon the expiration or termination of Service Order. S-Net has no obligation to maintain Customer-owned Hardware not purchased from S-Net. S-Net agrees to maintain at its own expense for the life of the contract, any Hardware purchased by Customer from S-Net excepting that S-Net shall not be responsible for any repairs resulting from physical damage, power surges, or abnormal use.
4.1 Customer Default. Customer shall be in default and S-NET may terminate this Agreement or suspend performance hereunder at any time upon: (i) any failure of Customer to pay any undisputed amounts as provided for in this Agreement that is not cured within ten business (10) days after the receipt by Customer of written notice from S-NET; (ii) any breach by Customer of any material provision of this Agreement continuing for ten (10) days after receipt of written notice thereof (iii) any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver or similar event with respect to Customer; or (iv) any violation by Customer of an applicable law, rule or regulation that is not cured within ten (10) days after receipt of written notice thereof. If Service is terminated on account of Customer’s breach of any provision of this Agreement, Customer agrees to pay to S-NET: (a) if subsequent to the Effective Date, but prior to the Service Installation Date, 50% of the value of the Agreement to the end of the current term, plus all non-recurring installation charges, all of which will immediately be due and payable or (b) if subsequent to the Service Installation Date, the full value of the Agreement to the end of the current term, plus all non-recurring installation charges, all of which will immediately be due and payable. Customer shall be liable to S-NET for any charges, including attorney fees and costs, incurred by S-NET to enforce the terms of this Agreement.
4.2. S-NET Default. S-NET shall be in default and Customer may terminate this Agreement and/or the affected Service Order at any time upon: (i) any breach by S-NET of any material provision of this Agreement that is not cured within ten (10) days after receipt by an authorized representative of S-Net of written notice thereof; (ii) any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver or similar event with respect to S-NET; or (iii) any violation by S-NET of an applicable law, rule or regulation that is not cured within ten (10) days after receipt by an authorized representative of S-Net of written notice thereof. Termination of this Agreement shall not relieve Customer of its obligation to pay any charges incurred hereunder prior to such termination.
4.3. Rates and Charges. The rates and charges for the Services shall be those set forth in the applicable Service Order(s), Service Schedule(s) and Attachment(s). Installation requirements for fiber Service (such as extending fiber from the Minimum Point of Entry (a/k/a “MPOE”) to the fiber demarcation point) not expressly stated as being undertaken by S-NET in a Service Order, are the responsibility of Customer. This Agreement is also subject to, and limited as applicable, Illinois state and federal tariffs, rules and regulations, as applicable and as amended from time to time. For any S-NET Service used by Customer for which a rate is not specified in this Agreement, the Parties shall mutually agree on the applicable rate for the Service, but if the Parties cannot agree and Customer utilizes the Service, the S-NET standard rate shall apply.
4.4. Extraordinary Use. Customer understands that the S-NET unlimited calling Service offering is not intended for businesses with an extraordinary amount of calling usage, such as, but not limited to, telemarketing and call center applications. Customer represents that it is not utilizing S-NET Service for extraordinary business applications and agrees that S-NET may change Customer’s rate plan to a “per minute” type of plan or S-NET’s call center Solutions if Customer utilizes the service in violation of this Section. Notwithstanding the foregoing, this Section 4.4 is inapplicable if Customer purchases any of S-NET’s Solutions that are designed specifically for call center use.
5.1. During the term of this Agreement, Customer shall pay S-NET for Solutions at the rates set forth herein. Monthly recurring charges shall be invoiced monthly in advance and shall commence on the Service Installation Date. All amounts owed by Customer shall be paid by the date stated on the invoice or bill (“Due Date”); however, the Due Date shall not be less than 21 days after the date of the invoice. S-NET reserves the right to charge interest on all delinquent payments at an annualized rate that is the lesser of eighteen percent (18%) or the highest amount permitted by the State of Illinois law for commercial transactions (“Late Payment Percentage”). S-NET reserves the right to back-bill Customer for services actually used but not previously billed. Disputes pertaining to an invoice shall be resolved in accordance with Section 11 (Dispute Resolution) of this Agreement.
6.1. To the extent required, Customer shall pay to S-NET all government and regulatory entities’ taxes, surcharges and fees that are associated with Customer’s lease, use or purchase of the Solutions, or any other transaction hereunder, including, but not limited to, any sales, use, federal excise or similar taxes, franchise fees, right-of-way fees, license fees and surcharges. All such taxes and fees shall be stated separately on Customer’s invoices and are subject to change without notice. To the extent Customer claims exemption from any tax or fee, Customer must provide a valid exemption certificate or such taxes and fees shall be due and payable to S-NET by the Due Date. Customer agrees to pay and to hold S-NET harmless from and against any penalty, interest, additional tax, or other charge that may be levied or assessed as a result of a delay or failure of Customer, for any reason, to pay any tax or fee charged to Customer by S-NET.
7.1. Customer expressly acknowledges through the execution of this Agreement, its responsibility associated with the ordering, provisioning and payment of all charges associated with the Services. Customer also acknowledges its responsibility for the installation, maintenance and repair of redundant power supply for any and all Solution provided under this Agreement. In addition, Customer expressly acknowledges hereby its understanding and acceptance of the possibility that in the provision of Solutions hereunder, it may be necessary or desirable to provide said Solutions using a shared or partitioned environment. In the event that sharing or partitioning of network servers or other equipment is required or desirable, S-NET shall take reasonable steps to ensure the security and integrity of Customer’s equipment and data. It is Customer’s responsibility to provide, whether through S-NET or otherwise, any and all precautions necessary to ensure the integrity of its network and data. In no circumstance shall S-NET be responsible for any damage associated with the loss or damage to Customer-owned Hardware, Customer’s equipment or data integrity due to said sharing or partitioning. In all circumstances, Customer shall be responsible for the maintenance and security of its premises.
8.1. S-NET may substitute, change or rearrange the manner in which S-Net provides Solutions at any time and from time to time, but shall not thereby diminish the quality or service levels of Solutions provided hereunder. Customer shall not cause or allow any Solution to be rearranged, moved, removed, disconnected, altered, or repaired without S-NET’s prior written consent. Customer shall not create or allow any liens or other encumbrances to be placed on any component of a Solution arising from any act, transaction or circumstance relating to Customer.
9.1. S-NET agrees to release, indemnify, defend and hold harmless Customer from all losses, claims, demands, damages, expenses, costs, attorney’s fees, suits or other actions and any liability whatsoever arising out of or related to any aspect of any Solution, for: (i) infringement or alleged infringement of any patent or any copyright, trade secret, or other intellectual property right; (ii) invasion of privacy; (iii) loss, damages to or destruction of property, whether or not owned by others, regardless of the form of action and (v) violation or alleged violation of any law or regulation. Notwithstanding the preceding sentence, S-NET shall have no obligation under this Section to the extent that the same arises out of or is in connection with the misconduct or negligence of Customer.
9.2. Customer shall indemnify and hold S-NET harmless from and against any losses, claims, demands, damages, expenses, costs, attorney’s fees, suits or other actions and any liability whatsoever incurred as a result of: (i) E911 Dialing arising out of Customer’s use of the Solutions; (ii) the content of the data from Customer passing through the Solution; (iii) Customer’s violation or alleged violation of any law or regulation; (iv) actual or alleged infringement of intellectual property rights arising out of Customer’s use of Solutions if such actual or alleged infringement is the result of Customer’s modification of any Solution; or (v) the malfunction or failure of any Customer-owned Hardware provided by Customer, its agents, employees or suppliers.
9.3. The above indemnifications are conditioned upon: (a) the indemnified Party promptly notifying the indemnifying Party of any action taken against the indemnified Party relating to the indemnification; (b) the indemnifying Party having sole authority to defend any such action, including the selection of legal counsel; (c) the indemnified Party may engage separate legal counsel only at its sole cost and expense; and (d) in no event shall the indemnifying Party settle or consent to any judgment pertaining to any such action without the prior written consent of the indemnified Party, which may not be unreasonably withheld..
10.1. E911 Dialing. SERVICE PROVIDED BY S-NET INCLUDES THE PROVISION OF E911 DIALING. S-NET SHALL NOT BE LIABLE FOR ANY FAILURE WHATSOEVER OF E911 DIALING OR RELATED ISSUES.
S-NET shall not be liable for any delay or failure to provide the E911 Dialing Service, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
10.2. S-NET’s aggregate liability under this agreement will in no event exceed the pro rata portion of monthly charges for the affected Service for the affected time period.
10.3. Disclaimer of Liability for Damages. EXCEPT AS PROVIDED IN SECTION 9, IN NO EVENT WILL S-NET, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION THE SERVICE BE LIABLE FOR ANY DIRECT, 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 S-NET WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
10.4. No Warranties on Service. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE 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, S-NET DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE; DELAY; INTERRUPTION; ERROR; DEGRADATION OF VOICE QUALITY; OR LOSS OF CONTENT, DATA, OR INFORMATION. NEITHER S-NET NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES ANY COMPONENT OR ASPECT OF THESERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO TRANSMISSION FACILITIES OR PREMISES 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 S-NET’S OR ITS SERVICE PROVIDER’S OR VENDORS’ NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY S-NET OR S-NET’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
10.5. Hardware Warranties. S-NET fully warrants that all Hardware installed by S-NET is maintained in working order for the term of this Agreement.
10.6. Disclaimer. THE FORGOING REPRESENTATION IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTEES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PUPOSE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AGAINST S-NET FOR LOSS OR DAMAGE CAUSED BY OR ARISING IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICE SHALL BE THE OBLIGATION OF S-NET AS SET FORTH IN THIS AGREEMENT.
10.7. 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.
10.8. Content. Customer will be liable for any and all liability that may arise out of the content transmitted by Customer or to any person, whether authorized or unauthorized, using the Service provided by S-Net (each such person, a “User”). Customer shall assure that Customer and Customer’s User’s use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. S-NET reserves the right to terminate or suspend any Service and remove Customer or Customer’s Users’ content from the Service, if S-NET determines, in its sole and absolute discretion, that such use or content does not conform to the requirements set forth in this Agreement or interferes with S-NET’s ability to provide Services to Customer or others. S-NET’s action or inaction under this Section 10 will not constitute any review or approval of Customer or Customer’s Users’ use or content.
11.1. Payment Disputes. Customers must provide S-Net with written notice of any disputed charge(s) within ninety (90) days after the invoice date on the invoice or shall be deemed to have waived its rights to dispute the charges in any case. Customer shall notify S-NET in writing of the nature and amount of any dispute of an invoice and shall pay the undisputed portion of the invoice on or before the Due Date. The Parties will work together in good faith to resolve properly noticed disputes. If a dispute is resolved in S-NET’s favor, Customer shall pay the previously disputed amount plus the Late Payment Percentage on such amount calculated from the original Due Date. Customer shall make any such payments no later than the Due Date of its next monthly invoice. If a dispute is resolved in Customer’s favor, S-NET will use commercially reasonable efforts to credit the disputed amount on Customer’s next invoice after such resolution. If a dispute concerning the amount of an invoice remains unresolved, either Party may initiate the dispute resolution process specified in Section 11.2 (Other Disputes) upon ten (10) days written notice to the other Party.
11.2. Other Disputes. Customer: In the event of any dispute, including Payment Disputes that were properly escalated to this dispute resolution process pursuant to Section 11.1, arising in connection with this Agreement and/or the Solutions provided hereunder, the Parties shall use good faith efforts to arrive at an agreeable resolution. The Party initiating the dispute shall provide written notice to the other Party of such dispute, which shall set forth the nature of the dispute and the remedy requested. The Parties shall negotiate in good faith for a period of thirty (30) days after the non-initiating Party has received such notice of dispute. Within such thirty-day period, the Parties shall escalate the dispute to the Vice President, or higher, level, and the Parties shall negotiate in good faith for a period of ten (10) business days at such level, or for any mutually agreed upon additional length of time. If after such period the Parties are unable to agree upon a resolution, either Party may pursue arbitration as provided in Section 12.3. Notwithstanding the foregoing, neither Party shall be barred from seeking any equitable or injunctive relief or any other relief available with respect to any breach of the Confidentiality obligations (Section 14) or the Publicity requirements (Section 17) set forth herein, immediately and without following the dispute resolution process set forth in this Section 11, unless waived in writing by the Parties hereto.
11.3. Arbitration. If a dispute involves a claim that exceeds $25,000, the dispute must be resolved by final and binding arbitration by a panel of one (1) arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect with such arbitration to be conducted in Chicago, Illinois. The AAA rules can be found at www.adr.org. Judgment upon the award rendered in any arbitration may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and enforcement, as the law of Illinois may require or allow. The fact that arbitration is or may be allowed will not impair the exercise of any termination rights under this Agreement. Except as otherwise provided by this Agreement: (a) each Party shall bear their own costs and expenses and (b) all administrative expenses (including the arbitrator’s fees) will be split equally by the Parties.
11.4. Waiver of Class Action. Customer agrees that by entering into this Agreement, Customer and S-NET each waive the right to participate in a class action against the other. This Agreement does not allow for class arbitration even if the AAA procedures or rules would allow. Customer and S-NET agree that each may bring claims against the other only in an individual capacity and not as a plaintiff or class member in any putative class or representative proceeding. Further, Customer and S-NET agree that the arbitrator shall not consolidate more than one individual party’s claims with any other party’s claims, and may not otherwise preside over any form of representative or collective proceeding. The arbitrator shall not have the authority to determine the enforceability of this provision. The arbitrator may award injunctive relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim.
12.1. Neither this Agreement, nor any rights or obligations under it may be assigned by customer without the written consent of S-Net (which consent shall not be unreasonably withheld or unduly delayed), except that a Party may assign its rights and obligations hereunder by providing thirty (30) days prior written notice to the other Party: (i) to any subsidiary, parent company, or affiliate; (ii) pursuant to any sale or transfer of all or substantially all the business; or (iii) pursuant to any financing, merger, or reorganization. Any proposed assignee of Customer must at a minimum meet all S-NET credit standards then in place and Customer shall be and remain liable for the performance of its obligations under this Agreement. Subject to this Section 12, this Agreement and each of the Parties’ respective rights and obligations hereunder, shall be binding upon and shall inure to the benefit of the Parties hereto and each of their respective permitted successors and assigns. Notwithstanding the foregoing, Customer shall remain secondarily liable for all payments and other performance due under this Agreement after any permitted assignment. Any and all increased payments for fees, charges, costs, expenses or regulatory approvals, franchises, permits, orders, consents and rights-of-way either by contract, franchise or some other agreement, and all other rights necessary to be obtained by S-NET in order to provide Solutions hereunder, which result from any permitted assignment or transfer of this Agreement by a Customer, shall be paid by Customer.
13.1. No license, joint venture or partnership, express or implied, is granted by either Party pursuant to this Agreement. The Parties are independent contractors. Neither Party shall be authorized to represent or bind the other Party without the other Party’s express written consent.
14.1. In performing their obligations pursuant to this Agreement, S-NET and Customer acknowledge that they and their respective employees, subcontractors and agents may have access to or receive disclosures of certain information relating to the other Party including, but not limited to, marketing plans, business plans, competitive advantages and disadvantages, financial results, pricing, technical solutions, technological developments, proprietary software and systems, trade secrets, customer data and a variety of other confidential information, documentation, agreements and materials. Each Party agrees that all such information, documentation and all related material (herein after referred to as “Confidential Information”) obtained by it, its directors, officers and employees, consultants, agents and representatives, and any third parties with which it contracts, is, and will be considered, confidential and proprietary to the Party hereto to which such Confidential Information relates. Confidential Information shall also include the proprietary information of a Party’s subsidiaries, affiliated companies, business partners, data providers, suppliers, customers and potential customers.
14.2. All of Customer’s Confidential Information whether in existence at the Effective Date or compiled thereafter, is the exclusive property of Customer and the furnishing of such information by Customer, or access to such information by S-NET will not grant any express or implied license to or interest to or in S-NET relating to such information, data, records and reports except as required to perform the Services.
14.3. All of S-NET’s Confidential Information whether in existence at the Effective Date or compiled thereafter in the course of performing the Services, is the exclusive property of S-NET and the furnishing of such information, or access to such items by Customer will not grant any express or implied license to or interest to or in Customer relating to such information, data, records and reports except as required to perform the Services.
14.4. For a period of three (3) years subsequent to the termination of this Agreement, each Party agrees to maintain in strict confidence all Confidential information of the other Party that is disclosed pursuant to this Agreement. No obligation of confidentiality shall apply pursuant to disclosed information which the recipient (a) already possessed without obligation of confidentiality; (b) develops independently; or (c) rightfully receives without obligation or confidentiality from a third party. Notwithstanding the foregoing, if the Parties have entered into a Confidentiality or Non-Disclosure Agreement the terms and conditions of that Agreement shall govern and control.
15.1. This Agreement shall be governed by the laws of the State of Illinois without regard to its choice of law provisions. In any action between the Parties to enforce any material provision of this Agreement, the prevailing Party shall be entitled to recover its legal fees and court costs from the non-prevailing Party in addition to whatever other relief is awarded. The Parties agree that any suit, action or proceeding arising out of, or with respect to, this Agreement or any judgment entered by any court in respect thereof shall be brought exclusively in the state or federal courts of the State of Illinois located in the County of Cook. S-NET and Customer hereby irrevocably accepts the exclusive personal jurisdiction and venue of those courts for the purpose of any suit, action or proceeding.
16.1. All notices required or permitted to be given hereunder, unless expressly provided otherwise, shall be in writing, properly addressed; postage pre-paid and delivered by certified mail, with a copy sent by facsimile or email as stated on the first page of this Agreement. A notice will be deemed effective: (i) if sent by certified mail or the equivalent, on the date that mail is delivered; unless, the date of that delivery is not a business day, in which case that communication shall be deemed given and effective on the first following day that is a business day and (ii) if sent by facsimile or email, the date that transmission is sent. A Party may change its address by providing notice thereof in accordance with this paragraph.
17.1. Neither party shall identify, either expressly or by implication, the other party or its corporate affiliates or use any of their names, trademarks, trade names, service marks or other proprietary marks in any advertising, press releases, publicity matters or other promotional materials without such Party’s prior written consent.
18.1. No waiver by any Party of any of its rights with respect to the other Party or with respect to this Agreement or any matter of default arising in connection with this Agreement shall be construed as a waiver of any other right, matter or default.
19.1. The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive. If any provision of this Agreement is held by a court to be invalid, void or unenforceable, the remainder of this Agreement shall nevertheless remain unimpaired and in effect.
20.1. The headings contained in this Agreement are for convenience of reference only and do not constitute a part of this Agreement. Any reference to a “Section,” or “Exhibit,” “Schedule” or “Service Order” refers to a section, exhibit, schedule or service order as the case may be, of this Agreement.
21.1. This Agreement may be executed in several counterparts, each of which is an original and all of which constitute one and the same agreement.
22.1. S-NET Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. S-NET is not liable for any lack of privacy therefore which may be experienced with regard to the Service.
23.1. Each Party agrees to keep in full force and effect and maintain at its sole cost and expense the following policies of insurance while this Agreement remains in effect: (i) Worker’s Compensation and Employer’s Liability Insurance up to the applicable statutory minimums; and (ii) commercial general liability insurance in an amount of at least $1,000,000 per occurrence for damage to property, including Customer’s property in S-NET’s data center and death/bodily injury. Each Party shall provide to the other Party, upon such other Party’s request, certificates of insurance signed by authorized representatives of the respective carriers for each year that this Agreement is in effect. The foregoing is in addition to any specific insurance requirements that may be set forth herein.
24.1. This Agreement is an electronic contract that sets out legally binding terms of Customer’s use of the Services. Customer hereby consents to have this Agreement provided in electronic form. Customer hereby agrees that by typing the signatory’s name and title and today’s date where indicated below, and returning this Agreement via electronic mail to S-NET, Customer is agreeing to the terms and conditions of this Agreement and constitutes an electronic signature. Customer has the right to receive this Agreement in non-electronic form, upon request. Customer may withdraw Customer’s consent to have this Agreement provided to Customer in electronic form by contacting S-NET. A withdrawal will not affect the legal validity or enforceability of this Agreement provided to and electronically signed by you, prior to the effective date of Customer’s withdrawal.
25.1. Notwithstanding any provision of this Agreement to the contrary, twelve (12) months following the Service Installation Date for Customer’s most recent Service, Customer may, due to a downturn in its business and/or adverse change in its financial condition, (a) terminate its hosted PBX call center licenses at a single location or (b) decrease by 15% all of its hosted PBX call center licenses, without incurring the applicable early termination charges. This provision is inapplicable to circuit based Services. This provision is not applicable if termination is due to, or coincides with, the transfer or initiation of any portion of its Services at any of its locations to similar service provided by another provider. Customer shall be liable for any documented expenses incurred by S-NET to discontinue the service pursuant to this Section. Termination of the PBX call center licenses pursuant to this section shall not waive or release Customer’s obligation for the cost of the Hardware associated with the terminated services, and the discounted balance of any lease for such Hardware shall become immediately due and payable upon termination of the licenses; however, at its sole discretion, S-NET may permit Customer to return the Hardware to S-NET and only pay a restocking fee of $35 per phone. Termination of Service pursuant to this Section only applies to Customer’s with S-NET Service at more than one of its locations.
26.1. In the event that Customer is not satisfied with the quality of any Solution provided by S-NET as the result of chronic outages of the Service subsequent to the Service Installation Date, Customer may terminate the Solution at issue without being liable for the value of the Agreement for that Solution through the end of the term as explained in Section 4 of this Agreement, provided that (i) S-NET is unable to resolve the issue within forty-five (45) days of receipt of written notice from Customer describing the reason for Customer’s dissatisfaction and explicitly referencing this Section 26 and (ii) the reason for Customer’s dissatisfaction does not arise from (a) an issue outside the control of S-NET; (b) a force majeure event; or (c) a Customer-caused issue. The written notice required by this Section must be mailed via certified mail to the address stated for Notices in this Agreement and emailed to email@example.com with “Customer Satisfaction Guarantee” in the subject line.