Terms and Conditions

These Terms and Conditions of Service are incorporated into, and constitute an essential part of, the Master Services Agreement (the "Agreement") between Customer and eSquared. Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Agreement.

TERMS AND CONDITIONS SPECIFIC TO WIRELESS DATA SERVICE

GENERAL TERMS AND CONDITIONS APPLICABLE TO eSquared OR ITS UNDERLYING PROVIDER'S BUSINESS CONNECT WIRELESS DATA SERVICES, INCLUDING BUT NOT LIMITED TO, FEATURES THAT MAY BE USED WITH SUCH WIRELESS DATA SERVICES AND WIRELESS CONTENT.

eSquared or its underlying provider provides wireless data services, including but not limited to, features that may be used with wireless data services and wireless content ("Business Connect Wireless Data Services"). The absolute capacity of the wireless data network is limited. Accordingly, service is only provided for circumscribed purposes and pricing for Business Connect Wireless Data Services is device dependent, based on the transmit and receive capacity of each device. A pricing plan designated for one type of device may not be used with another device.

These Business Connect Wireless Data Services may be subject to credit approval and may only be available when combined with certain voice rate plans available in the eSquared or its underlying provider Partner Exchange Mobile Services program. An activation fee of $18 may apply to each new line activated on a Business Connect plans with 1MB - 10MB of included data. An activation fee of $36 may apply to each new line activated on a Business Connect plans with 20MB - 5000MB of included data. Compatible data-enabled wireless device required. Usage/Billing: Usage and monthly fees will be charged as specified in your plan.

DATA TRANSPORT IS BILLED IN FULL-KILOBYTE INCREMENTS, AND ACTUAL TRANSPORT IS ROUNDED UP TO THE NEXT FULL-KILOBYTE INCREMENT AT THE END OF EACH DATA SESSION FOR BILLING PURPOSES. eSquared OR ITS UNDERLYING PROVIDER CHARGES A FULL KILOBYTE OF DATA TRANSPORT FOR EVERY FRACTION OF THE LAST KILOBYTE OF DATA TRANSPORT USED ON EACH DATA SESSION. NETWORK OVERHEAD, SOFTWARE UPDATE REQUESTS, AND RESEND REQUESTS CAUSED BY NETWORK ERRORS CAN INCREASE MEASURED KILOBYTES. AIRTIME AND OTHER MEASURED USAGE ARE BILLED IN FULL-MINUTE INCREMENTS AND ROUNDED UP TO THE NEXT FULL-MINUTE INCREMENT AT THE END OF EACH CALL FOR BILLING PURPOSES.

Data sent and received includes, but is not limited to downloads, email, overhead and software update checks. Unless designated for International or Canada use, prices and included use apply to EDGE/GPRS access and use on eSquared or its underlying provider's wireless network and its partner wireless networks within the United States and its territories (Puerto Rico and the U.S. Virgin Islands), excluding areas within the Gulf of Mexico. Usage on networks not owned by eSquared or its underlying provider is limited as provided in your data plan. Charges will be based on the location of the site receiving and transmitting service and not the location of the subscriber. Overage is billed by the kilobyte. Service charges paid in advance for monthly or annual Services are nonrefundable. Some Services may require an additional monthly subscription fee and/or be subject to additional charges and restrictions. See applicable rate plan materials for complete pricing and terms.

Prices do not include taxes, directory assistance, roaming, universal services fees or other exactions and are subject to change. In order to assess your usage during an applicable billing period, you may obtain approximate usage information by calling customer service or using one of our automated systems. Voice: If you have a voice-capable device, unless you request voice blocking, select a data plan that restricts voice access or select a qualified voice plan, the default rate for voice calls on eSquared or its underlying provider's wireless network and domestic roaming voice calls off eSquared or its underlying provider's wireless network (rates are subject to change without notice) is $0.45. Additional taxes and surcharges may apply. If you request voice blocking or your selected data plan restricts voice access, all voice calling capabilities (except for outgoing calls from the device to 911 or 611) will be blocked, including without limitation, calls from 911 or 611 to the device. If you have a wireless voice plan, wireless voice calls are billed as provided in your wireless voice rate plan. Roaming: Roaming charges for wireless data or voice service may be charged with some plans when outside eSquared or its underlying provider's wireless network. Display on your device will not indicate whether you will incur roaming charges. Services originated or received while outside your plan's included coverage area are subject to roaming charges. Use of Services when roaming is dependent upon roaming carrier's support of applicable network technology and functionality. Check with roaming carriers individually for support and coverage details. Billing for domestic and international roaming usage may be delayed up to three billing cycles due to reporting between carriers. You may be required to (1) use a device programmed with eSquared or its underlying provider's preferred roaming database; and (2) have a mailing address and live in the United States, Puerto Rico or the U.S. Virgin Islands.

Service Availability and Access/Coverage: eSquared or its underlying provider does not guarantee availability of wireless network. Services may be subject to certain equipment and compatibility/limitations including memory, storage, network availability, coverage, accessibility and data conversion limitations. Services (including without limitation, eligibility requirements, plans, pricing, features and/or service areas) are subject to change without notice. When outside coverage area, access will be limited to information and applications previously downloaded to or resident on your device. Coverage areas vary between eSquared or its underlying provider EDGE and GRPS. See coverage map(s), available from your sales representative, for details. Actual download speeds depend upon device characteristics, network, network availability and coverage levels, tasks, file characteristics, applications and other factors. Performance may be impacted by transmission limitations, terrain, in-building/in-vehicle use and capacity constraints.

Information/Content: Certain information or content is provided by independently owned and operated content providers or service providers who are subject to change at any time without notice.

eSquared OR ITS UNDERLYING PROVIDER IS NOT A PUBLISHER OF THIRD-PARTY INFORMATION OR CONTENT AND IS NOT RESPONSIBLE FOR ANY OPINIONS, ADVICE, STATEMENTS, OR OTHER INFORMATION, SERVICES OR GOODS PROVIDED BY THIRD PARTIES. Third-party content or service providers may impose additional charges. Policies regarding intellectual property, privacy and other policies may differ among eSquared or its underlying provider's content or service providers and you are bound by such policies when you visit their respective sites or use their services. It is your responsibility to read the rules or service agreements of each content provider or service provider. Any information you involuntarily or voluntarily provide third parties is governed by their policies. The accuracy, appropriateness, content, completeness, timeliness, usefulness, security, safety, merchantability, fitness for a particular purpose, transmission or correct sequencing of any information or downloaded data is not guaranteed or warranted by eSquared or its underlying provider or any content providers or other third party. Delays or omissions may occur. Neither eSquared or its underlying provider nor its content providers, service providers or other third parties shall be liable to you for any loss or injury arising out of or caused, in whole or in part, by any information acquired through the Service. YOU ACKNOWLEDGE THAT EVERY BUSINESS OR PERSONAL DECISION, TO SOME DEGREE OR ANOTHER, REPRESENTS AN ASSUMPTION OF RISK, AND THAT NEITHER eSquared OR ITS UNDERLYING PROVIDER NOR ITS CONTENT AND SERVICE PROVIDERS OR SUPPLIERS, IN PROVIDING ACCESS TO INFORMATION, UNDERWRITES, CAN UNDERWRITE, OR ASSUMES YOUR RISK IN ANY MANNER WHATSOEVER.

Prohibited and Permissible Uses: Except as may otherwise be specifically permitted or prohibited for select data plans, data sessions may be conducted only for Wireless Wide Area Network (WWAN) applications (e.g. machine-to-machine connections). While most common uses for Wireless Wide Area Network (WWAN) applications are permitted by your data plan, there are certain uses that cause extreme network capacity issues and interference with the network and are therefore prohibited.

Examples of prohibited uses include, without limitation, the following: (i) server devices or host computer applications; (ii) "auto-responders," "cancel-bots," or similar automated or manual routines which generate excessive amounts of net traffic, or which disrupt net user groups or email use by others; (iii) "spam" or unsolicited commercial or bulk email (or activities that have the effect of facilitating unsolicited commercial email or unsolicited bulk email); (iv) any activity that adversely affects the ability of other people or systems to use either eSquared or its underlying provider's wireless services or other parties' Internet-based resources, including "denial of service" (DoS) attacks against another network host or individual user; (v) accessing, or attempting to access without authority, the accounts of others, or to penetrate, or attempt to penetrate, security measures of eSquared or its underlying provider's wireless network or another entity's network or systems; downloading movies using P2P file sharing services, redirecting television signals for viewing on Personal Computers, web broadcasting, and/or for the operation of servers, is prohibited. Furthermore, plans (unless eSquared or its underlying provider specifically designated for tethering usage) cannot be used for any applications that tether the device (through use of, including without limitation, connection kits, other phone/PDA-to-computer accessories, Bluetooth or any other wireless technology) to Personal Computers (including without limitation, laptops), or other equipment for any purpose. Accordingly, eSquared or its underlying provider reserves the right to (i) deny, disconnect, modify and/or terminate Service, without notice, to anyone it believes is using the Service in any manner prohibited or whose usage adversely impacts its wireless network or service levels or hinders access to its wireless network, including without limitation, after a significant period of inactivity or after sessions of excessive usage and (ii) otherwise protect its wireless network from harm, com promised capacity or degradation in performance, which may impact legitimate data flows. You may not send solicitations to eSquared or its underlying provider's wireless subscribers without their consent. You may not use the Services other than as intended by eSquared or its underlying provider and applicable law. Plans are for use by the End User Customers of Solution Providers that signed the eSquared or its underlying provider Mobile Services Addendum. eSquared or its underlying provider may, but is not required to, monitor your compliance, or the compliance of other subscribers, with eSquared or its underlying provider's terms, conditions, or policies.

Security: eSquared or its underlying provider DOES NOT GUARANTEE SECURITY. Data encryption is available with some, but not all, Services sold by eSquared or its underlying provider. If you use your device to access company email or information, it is your responsibility to ensure your use complies with your company's internal IT and security procedures. Changes to the terms and conditions: These terms and conditions may be changed from time to time. eSquared or its underlying provider will post the most current version of these terms and conditions at eSquared or its underlying provider Partner Exchange Mobile Services Service Guide ("Service Guide") https://www.att.com/partnerexchange/support/contractDocLibrary.jsp or other appropriate location. Please check these regularly to inform yourself about changes to the terms and conditions.

Access Requirements: Additional hardware, software, subscription, credit or debit card, Internet access from your compatible PC and/or special network connection may be required and you are solely responsible for arranging for or obtaining all such requirements. Some solutions may require third-party products and/or services, which are subject to any applicable third-party terms and conditions and may require separate purchase from and/or agreement with the third-party provider. eSquared or its underlying provider is not responsible for any consequential damages caused in any way by the preceding hardware, software or other items/requirements for which you are responsible.

Miscellaneous: Not all plans or Services are available for purchase or use in all sales channels, in all areas or with all devices. eSquared or its underlying provider is not responsible for loss or disclosure of any sensitive information you transmit. eSquared or its underlying provider's wireless services are not equivalent to landline Internet. eSquared or its underlying provider is not responsible for nonproprietary services or their effects on devices. If applicable, use of Desktop Toolbar requires compatible home computer products. eSquared OR ITS UNDERLYING PROVIDER RESERVES THE RIGHT TO TERMINATE YOUR SERVICES WITH OR WITHOUT CAUSE, INCLUDING WITHOUT LIMITATION, UPON EXPIRATION OR TERMINATION OF YOUR WIRELESS SERVICE AGREEMENT.

Caller ID blocking is not available when using the Services, and your wireless number is transmitted to Internet sites you visit. You may receive unsolicited messages from third parties as a result of visiting Internet sites, and a per-message charge may apply whether the message is read or unread, solicited or unsolicited.

Additional Terms: See below for additional terms relating to specific Services and rate plans. In addition, all use of eSquared or its underlying provider's wireless network and the Services is governed by eSquared or its underlying provider's Acceptable Use Policy, determined solely by eSquared or its underlying provider. eSquared or its underlying provider can revise its Acceptable Use Policy at any time without notice by updating this posting. Use of the Services is subject to Terms and Conditions of your Wireless Service Agreement. See Wireless Service Agreement, att.com/wireless or eSquared or its underlying provider Customer Service for additional conditions, restrictions, privacy policy and information.

Intellectual Property: All trademarks, service marks and trade names used on or in connection with the Services are the property of their respective owners. You must respect the intellectual property rights of eSquared or its underlying provider, our third-party content providers, and any other owner of intellectual property whose protected property may appear on any website and/or dialogue box controlled by eSquared or its underlying provider or accessed through the eSquared or its underlying provider's websites. Except for material in the public domain, all material displayed in association with the Service is copyrighted or trademarked. Except for personal, non-commercial use, trademarked and copyrighted material may not be copied, downloaded, redistributed or otherwise exploited, in whole or in part, without the permission of the owner.

ADDITIONAL TERMS APPLICABLE TO BUSINESS CONNECT FOR SPECIFIC WIRELESS DATA SERVICES, TEXT, INSTANT MESSAGING AND PICTURE/VIDEO MESSAGING.

Messages are limited to 160 characters per message. Premium text and picture/video messages are charged at their stated rates. Standard rates apply to all incoming messages when in the U.S. Different, non-standard per message charges apply to international messages sent from the U.S. Text, Instant, Picture, and Video messages are charged when sent or received, whether read or unread, solicited or unsolicited. eSquared or its underlying provider does not guarantee delivery of messages. Text, Instant, Picture, and Video messages, including downloaded content, not delivered within 7 days will be deleted. eSquared or its underlying provider reserves the right to change this delivery period as needed without notification. You are charged for each part of messages that are delivered to you in multiple parts. Picture/Video Messaging, data plan, and Text Messaging may need to be provisioned on an account in order to use Picture/Video Messaging. Some elements of Picture/Video messages may not be accessible, viewable, or heard due to limitations on certain wireless phones, PCs, or e-mail. eSquared or its underlying provider reserves the right to change the Picture/Video message size limit at any time without notification. Picture/Video Messaging pricing is for domestic messages only. When a single message is sent to multiple recipients, the sender is charged for one message for each recipient and each recipient is charged for the message received. Text message notifications may be sent to non-Picture/Video Messaging subscribers if they subscribe to Text Messaging.

Fixed wireless deployments: INSTALLATION MUST BE WITHIN AN eSquared OR ITS UNDERLYING PROVIDER-OWNED WIRELESS NETWORK COVERAGE AREA AND USAGE OF THE SERVICES ON OTHER CARRIERS' WIRELESS NETWORKS ("OFFNET USAGE") IS PROHIBITED. If your fixed wireless deployment incurs any offnet usage, eSquared or its underlying provider may at its option terminate your wireless service or access to data Services, deny your continued use of other carriers' coverage, or change your plan to one imposing usage charges for offnet usage. eSquared or its underlying provider will provide notice that it intends to take any of the above actions and you may terminate your agreement.

GENERAL TERMS AND CONDITIONS FOR ALL SERVICES

Regulation. The rates set forth in the Agreement are subject to the imposition of new regulations, modifications of existing regulations, new interpretation, application or enforcement of, or exercise of authority related to, any regulation or finding of any federal, state and/or local regulatory agency, legislative body, or court of competent jurisdiction, including, without limitation, the imposition of any charges, surcharges, and/or taxes in reliance on or as a result of the same ("Regulatory Change"). eSquared reserves the right, at any time to (i) to pass through to customer all charges, surcharges or taxes directly or indirectly related to such Activity, and/or (ii) modify the rates and/or terms and conditions of the Agreement to reflect the impact of such Regulatory Change, including, without limitation, the impact of any actions by third parties in connection with such Regulatory Change. To the extent Customer is purchasing telecommunications service hereunder, Customer acknowledges that eSquared has no ability to determine whether the communications traffic carried via the Service is jurisdictionally interstate or intrastate.  Unless otherwise stated in the applicable CSO, it is assumed by eSquared that any Customer communications traffic to be carried via any eSquared network shall be jurisdictionally interstate, pursuant to the Federal Communications Commission's mixed-use "10% Rule"  (47 CFR 36.154, 4 FCC Rcd. 1352).

 

Acceptance. Upon installation of Service, eSquared may deliver to Customer a written notice of such installation ("Connection Notice"), which may be e-mailed to Customer. If Customer fails to deliver written notice of acceptance within two (2) business days of eSquared's delivery of the Connection Notice, Customer shall be deemed to have accepted the applicable Service. The acceptance date for a given Service shall be the earlier of 1) the date on which Customer delivers written notice of acceptance, 2) the date on which Customer begins to use the Service, other than for testing, or 3) the second (2^nd) business day following eSquared's delivery of the Connection Notice ("Acceptance Date"). The date upon which Subscription Fees for Monthly Recurring Services shall begin to accrue for any Service (the "Service Commencement Date") shall be the Acceptance Date for such Service. Any failure on Customer's part to be ready to receive the Service, or any refusal on the part of Customer to receive the Service (unless such refusal is based on the failure of the Service to comply with applicable technical specifications), shall not relieve Customer of its obligation to pay charges (including, without limitation, any Subscription Fees and any NRCs) for any Service that eSquared makes available to Customer pursuant to a CSO. eSquared shall not be deemed to be in breach of this Agreement for its failure to meet any anticipated Service Commencement Date if such failure is caused, in whole or in part, by any Third Party Provider, a force majeure event or acts or omissions of Customer.

Billing Disputes. Only disputes made in good faith, in a timely manner and properly documented as required herein, as determined by eSquared in its sole discretion, will be considered by eSquared. To meet these requirements, Customer must provide eSquared with written notice of any disputed charge(s) within thirty (30) days of the original Due Date for such charges. Along with such notice, Customer shall set forth in detail all grounds for disputing each charge and provide all documents supporting each dispute. Customer shall not have the right to withhold any amount not properly disputed. eSquared and Customer shall attempt in good faith promptly to resolve any dispute within thirty (30) days of eSquared's receipt of notice of that dispute. If a dispute is not resolved, eSquared shall have the right to determine in good faith the merit of each dispute and Customer's associated payment obligation. If eSquared determines that any amount withheld in dispute is owed, Customer shall pay that amount within ten (10) days of its receipt of written notice from eSquared of such determination, plus interest at the lower of 2.0% per month or the maximum rate permissible under applicable state law, calculated from the Due Date until the date payment is received by eSquared. Failure to pay such amount in full within such ten (10) day period shall be a breach hereof and shall entitle eSquared, in addition to its other remedies at law or equity, to terminate all Services to Customer without notice and without liability of any kind or amount. If eSquared determines that any amount withheld in dispute is not owed, eSquared shall issue a credit for that amount on the first invoice issued by eSquared for a full billing cycle after eSquared's determination is made. Customer's exclusive remedy for issues relating, whether directly or indirectly, to any disputes shall be in the forum and pursuant to the laws as set forth in the Agreement.

 

Reinstatement. Service will only be reinstated once all outstanding bills have been paid in full and any other cause for suspension or disconnection has been remedied in full. A reinstatement fee of $500 will be charged to reestablish Service that has been suspended or disconnected. Notwithstanding the foregoing, Customer understands and agrees with respect to Service that has been suspended or disconnected that: (a) Customer is responsible for payment of all applicable Early Termination Charges for such Service; (b) eSquared may, in its sole discretion, impose new deposit requirements, connection fees and minimum term commitments and require that Customer execute a new CSO as a prerequisite before Service will be reinstated; and (c) if Service has been suspended or disconnected for 48 hours and the cause for such suspension or disconnection remains uncured for such period, eSquared may, in its sole and absolute discretion, refuse to reinstate Service (and such refusal shall not alleviate customer from any and all applicable Early Termination Charges or other liabilities provided for in the Agreement).

Customer Service and Support/Service Interruption.

For its Wireless Data Services, eSquared will provide customer service to Customer via call center, e-mail or web form as necessary.

24/7 Tier 1

This is the initial support level responsible for basic driver issues. Tier 1 agents gather information and evaluate the symptoms related to an issue in order to determine the underlying problem.  When analyzing the symptoms, Tier 1 agents seek to identify what the driver is trying to accomplish so that time is not wasted on attempting to solve a symptom instead of a problem.  Once identification of the underlying problem is established, Tier 1 agents can identify available solutions and work toward resolution. Tier 1 agents handle straightforward problems and requests, such as, but not limited to, power and connectivity of the device, internet and application access on the device, user login or password assistance, instruction in navigating application menus and options, verification of physical device status, verification of physical installation status, connection and reporting status of on-board computing devices, verification of proper hardware and software setup, or facilitating the use of basic software features and functions. The goal for this group is to handle 90% or more of the problems and requests before finding it necessary to elevate to Tier 2 support.

DOT Compliance and Logs: Tier 1 will not provide guidance or otherwise address any regulatory compliance or legal issues.

7am-5pm MST Tier 2

Tier 2 is a more in-depth technical support level than Tier 1.  This level of support utilizes advanced troubleshooting tools and methods to analyze and action elevated cases that could not be resolved at Tier 1. Tier 2 agents are responsible for investigating elevated issues by confirming the validity and priority of the problem and searching for known solutions to these more complex cases.  Prior to further troubleshooting, Tier 2 agents review the work conducted by Tier 1 to understand what has been previously performed and accomplished, as well as how long the issue has been open. Tier 2 issues may include, but are not limited to, software repair, diagnostic testing, and utilization of remote over-the-air tools for the sole purpose of troubleshooting and finding a solution to the problem.  Tier 2 calls may be routed to different organizations based on the problem type (e.g. software vs. hardware).

7am-5pm MST Tier 3

Tier 3 is the highest level of technical support.  This level of support utilizes expert troubleshooting tools and methods to analyze and action elevated cases that could not be resolved at Tier 2. Tier 3 agents are responsible for the research and development of solutions to new or unknown issues.  Upon encountering new problems, Tier 3 agents must first determine whether or not to solve the problem and may require in depth customer assistance to troubleshoot the issue and find a solution.  If determined that a problem can and should be solved, Tier 3 is responsible for designing, developing and implementing a solution.  Once the solution is verified, it is delivered to the customer and made available for future troubleshooting and analysis.

Outage Credits - General. Nothwithstanding anything herein, eSquared can only offer service levels and service level agreements that it receives from its underlying service providers. eSquared disclaims it can offer the Outage Credits disussed herein for all underlying service providers (if any). In the event Customer experiences any interruption in its Service that it believes to be material, Customer shall immediately notify eSquared at service-request@e2cc.com and request that eSquared open a trouble ticket to investigate. Before notifying eSquared, Customer shall ascertain that the interruption is not within Customer's control (e.g. Customer equipment, power, wiring, networking, etc.) and Customer shall be liable to reimburse eSquared for all costs incurred by eSquared in connection with an interruption that was within Customer's control. Customer shall retain each trouble ticket number opened on its behalf. eSquared's mean time to repair ("MTTR") goal is two (2) hours. Notwithstanding the reporting of an interruption in its Service, Customer shall only be entitled to a credit where eSquared determines that each of the following conditions exist: (i) the interruption ("Outage") exists for a period of time of not less than two (2) continuous hours and renders the Service "unavailable" (as defined in the Specification) during that entire time period (and which is not a scheduled outage); (ii) a trouble ticket is opened by the Customer with eSquared at the commencement of the Outage; and (iii) a request for credit is made in writing to eSquared within thirty (30) days of the date the trouble ticket was opened. Customer acknowledges that it is reasonable to base Customer's entitlement to credits on each of the conditions identified above and it is reasonable to limit Customer's recovery to the outage credit described below ("Outage Credit"). Customer waives all rights to damages or to other relief in the event of an Outage. The length of each Outage shall be calculated in hours and shall include fractional portions thereof. An Outage shall be deemed to have commenced upon verifiable notification thereof by Customer to eSquared Each Outage shall be deemed to terminate upon restoration of the affected Service as evidenced by appropriate network tests by eSquared All Outage Credits shall be credited on the next monthly invoice for the affected Service and the total of all Outage Credits applicable to or accruing in a given month shall not exceed the amount payable by Customer to eSquared for that same month for such Service. Except as provided in Section 8 below, the Outage Credits described in this Section of the Agreement shall be the sole and exclusive remedy of Customer in the event of any Outage.

Credit. Customer's execution of the Agreement signifies Customer's acceptance of eSquared's initial and continuing credit approval procedures and policies as a condition of eSquared providing Services. eSquared reserves the right to withhold initiation of full implementation of Services under the Agreement pending initial satisfactory credit review and approval thereof which may be conditioned upon terms specified by eSquared including, but not limited to, security for payments due hereunder in the form of a cash deposit via wire transfer, guarantee, irrevocable letter of credit from a financial institution, or other forms of security acceptable to eSquared, in its sole discretion. In instances where Customer is required to provide eSquared with security in the form of a cash deposit, the cash deposit shall bear interest at the rate for telephone security deposits set by the Public Utility/Service Commission in the state where Customer is headquartered. In certain situations, eSquared shall require Customer to pre-pay for all Services provided by eSquared in cash, via wire transfer. Initial prepayment amount for service is one and one-half (1.5) months' estimated usage. Regardless of the initial prepayment amount, it shall be the responsibility of Customer to always maintain sufficient prepayment credit balance to cover weekends and holidays. If Customer expects usage of Service to increase, it must make appropriate adjustments to amount of prepayment. eSquared retains the right to suspend service without notice or liability to Customer if at any time Customer does not have sufficient prepayment credit balance to cover estimated usage at any time. Upon request by eSquared at any time, Customer agrees to provide financial statements or other indications of financial circumstances. As may be determined by eSquared, in its sole discretion at any time, if the financial circumstances or payment history of Customer is, or becomes unacceptable, eSquared may require a new or increased deposit, pre-payment, guarantee or irrevocable letter of credit at eSquared's discretion, to secure Customer's payments for the remainder of the Term and such deposit, pre-payment, guarantee or irrevocable letter of credit shall be provided within five (5) days of written request. Failure of Customer to provide the requested security pursuant to the Agreement shall constitute a breach of the Agreement and eSquared may suspend or terminate Services until such time as the required security is received.

Compliance with Law. Use of the Services shall be in accordance, and comply, with the T&C's, all Policies, all applicable laws, regulations, and rules. Customer shall obtain all approvals, consents and authorizations necessary to conduct its business and initiate or conduct any transmissions over any facilities or networks covered by this Agreement.

Non-Disclosure and Publicity. Neither Party shall disclose to any third party the terms and conditions of the Agreement without the prior written consent of the other Party.

Limitation of Liability. IN NO EVENT SHALL ESQUARED OR ANY AFFILIATED PERSON OR ENTITY BE LIABLE TO CUSTOMER OR ANY AFFILIATED PERSON OR ENTITY FOR ANY LOSS OF PROFIT OR REVENUE OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, RELIANCE, COST OF COVER, SPECIAL, PUNITIVE OR SIMILAR OR ADDITIONAL DAMAGES, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, INCURRED OR SUFFERED AS A RESULT OF UNAVAILABILITY, PERFORMANCE, NON-PERFORMANCE, TERMINATION, BREACH, OR OTHER ACTION OR INACTION UNDER THE AGREEMENT, EVEN IF CUSTOMER OR ANY AFFILIATED PERSON OR ENTITY ADVISES ESQUARED OR ANY AFFILIATED PERSON OR ENTITY OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. ESQUARED SHALL NOT BE RESPONSIBLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING FROM THE INSTALLATION, MAINTENANCE OR REMOVAL OF EQUIPMENT OR THE PROVISION OF SERVICES, AND CUSTOMER HEREBY INDEMNIFIES AND HOLDS HARMLESS eSquared FROM AND AGAINST ANY LIABILITIES INCLUDING ATTORNEY'S FEES ARISING OUT OF SUCH DAMAGE OR INJURY. CUSTOMER'S REMEDIES FOR CLAIMS UNDER THE AGREEMENT SHALL BE STRICTLY LIMITED TO OUTAGE CREDITS AS DESCRIBED HEREIN.

 

Equipment. Any equipment provided to Customer by eSquared for use in conjunction with Services will be subject to the terms and conditions set forth below or in the Agreement. eSquared will "drop ship" the equipment to Customer via certified carrier with tracking technology. Customer is responsible to be present for receipt of delivery. Customer must unpack and place the equipment in a secure and environmentally controlled space that is within 50 feet of the LEC point of demarcation ("demarc"). Customer also agrees to provide the analog POTS line that will at all times remain plugged into the provided equipment. The number for the analog line shall be provided to eSquared's provisioning staff prior to turn up, and the line shall be in good working order on the date and time of the turn up. The cost and maintenance of the analog line is the Customer's responsibility. If at any time during the applicable CSO Term a piece of equipment fails and is in need of replacing, eSquared will provide replacement equipment. The equipment failure shall be determined by eSquared or its third party subcontractors working with the customer in conjunction of eSquared's technical staff. Once determined by eSquared, in its sole discretion, that the equipment is need of replacing, eSquared will ship overnight replacement equipment to Customer's site on the next business day if determined by noon CST, all shipments to customer from eSquared will be on eSquared shipping accounts e.g. Fedex, UPS, etc. If eSquared installs or provides equipment on Customer's premises for the purpose of enabling eSquared to provide the Services to Customer, Customer agrees to provide eSquared reasonable access into Customer's premises for the purpose of installation, demonstration, inspection, maintenance, repair and removal of the equipment, as well as eSquared's installers with a safe working environment. Additionally, Customer acknowledges that it will have no right, title or interest in any equipment that eSquared installs. eSquared and Customer agree that the equipment will not become a fixture and Customer shall keep the equipment free from all liens, charges and encumbrances. Customer agrees: (1) to use the equipment only for the purpose of receiving Services ordered from eSquared and no other purpose; (2) to prevent any connections to the equipment that are not expressly authorized by eSquared; (3) to prevent tampering, altering or repair of the equipment, or inside wiring, by any person other than eSquared's authorized personnel; (4) to assume complete responsibility for improper use, damage or loss of such equipment regardless of cause (including damage or loss caused by force majeure events), except to the extent caused by eSquared or its suppliers; and (5) to return the equipment in good condition, ordinary wear and tear resulting from proper use excepted, immediately upon discontinuance of Service. In the event the equipment is not returned in good condition, Customer agrees to pay eSquared an amount for each equipment device in accordance with the table located in the Equipment Addendum.

 

Internet Service and IP Addresses. Internet Services are designed exclusively for data Internet access. eSquared makes no representation, guarantee or warranty of any kind or nature regarding the suitability of eSquared's Wireless Internet Services for any use other than for data Internet access. eSquared SPECIFICALLY AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE INTERNET SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, INCLUDING BUT NOT LIMITED TO USE OF INTERNET SERVICES FOR VOIP OR VIDEO OVER THE INTERNET. Customer hereby agrees and acknowledges that IPv6 is not supported by default, and therefore eSquared will not support IPv6 on an MPLS network unless it is specifically agreed to in writing by the Parties prior to the Effective Date of the Agreement. Customer may request that eSquared obtain IP addresses and assign Internet access space for the benefit of Customer during the Term (subject to availability). eSquared will route IP addresses on eSquared's Network. Customer hereby agrees and acknowledges that Customer does not have rights and ownership interest in any eSquared obtained IP Addresses, and upon termination of the Agreement, Customer agrees that all rights to access and right to use such IP Addresses shall terminate immediately.

 

No Right To Intellectual Property. The Agreement confers no right to use the name, service marks, trademarks, software rights or licenses, copyrights, or patents of either Party except as expressly provided herein. Neither Party shall take any action, which would compromise the registered copyrights or service marks of the other.

 

Notices. All notices, demands, consents, requests, approvals, Customer name and address changes, billing inquiries and requests, or other communication which either Party is required or desires to give or make upon or to the other Party shall be in writing and will be effective when sent, if hand delivered or faxed (with confirmation of receipt); on the next business day if sent by a generally recognized overnight delivery service (subject to confirmation from the service); or on the date received if sent by United States certified or registered mail, return receipt requested. Such Notices will be sent to the addresses set forth in the Agreement on the signature page, unless either Party changes its address by giving written notice of such changes to the other Party in accordance with the Agreement. Customer acknowledges that rate change notices may be delivered by eSquared to Customer by email or facsimile and shall be deemed to be delivered when received by Customer.

 

No Third Party Beneficiaries. The Agreement is being executed for the sole and exclusive benefit of the Parties hereto and is not for the benefit of any third parties. The execution hereof shall not create any obligations or confer any rights on any person or entity other than the Parties hereto.

 

Obligations of Customer. Customer acknowledges that it is Customer's sole responsibility to supply immediate notice to eSquared if Customer changes any of its contact information. If at any time Customer's name or billing information changes from that which is set forth below, Customer shall have five (5) days to inform eSquared of such changes in accordance with the Notice provisions set forth in the Terms/Conditions.

 

Relationship of Parties. Neither the Agreement nor the provision of Service hereunder shall be deemed to create any joint venture, partnership or agency between eSquared and Customer; the Parties are independent contractors and shall not be deemed to have any other relationship. Neither Party, nor any agent or representative of either Party, shall have, or hold itself out as having; the power or authority to bind or create liability for the other Party by its intentional or negligent act and no claimed act of authority shall have any binding effect.

 

Network Abuse. Customer is prohibited from abusing the networks of eSquared and its underlying carriers. For a complete description of eSquared's network abuse policy, the terms and conditions of which are incorporated by this reference as if copied herein, please refer to Addendum 2.

 

Termination of Services; Moves.

 

The term of each CSO shall be set forth in the CSO. Other than a termination for cause as may be provided in the Agreement, Customer may terminate any Service before expiration of the applicable CSO Term by providing eSquared with written notice at least sixty (60) days in advance. In such event, within thirty (30) days from the effective date of termination Customer shall pay eSquared a mandatory early termination charge (the "Early Termination Charge") equal to the Subscription Fees for the monthly recurring charges and all associated fees and charges of the terminated Service, including but not limited to the applicable maintenance fee, multiplied by the number of months remaining in the CSO Term. Before Customer's early termination of a CSO may become effective, Customer must first approve in writing the applicable Early Termination Charge amount provided to it by eSquared Customer hereby agrees: (a) the damages that eSquared will incur as a result of such termination will be impossible to ascertain; (b) the Early Termination Charge is reasonable and fairly represents the amount of damages that eSquared will sustain as a result of such early termination; (c) the Early Termination Charge establishes liquidated damages and shall not be construed as a penalty of any kind; (d) Customer waives any right to ascertain eSquared's actual damages in the event of such early termination; and (e) that in entering into this Agreement eSquared has made pricing concessions based on the terms herein and that payment due under this provision is a fair approximation of the damages that would be sustained by eSquared and does not constitute a penalty or liquidated damages. Payment of an Early Termination Charge shall not relieve the Customer of its obligation to pay any charges incurred under the applicable CSO prior to the effective date of such termination.

 

Any written notice pursuant to this section must be sent by an authorized representative of Customer in the manner outlined in these T&Cs and must specifically describe the Service to be terminated and the reasons therefor. Customer must also reasonably cooperate with eSquared to identify the specific circuit(s) or Service(s) being terminated, and Customer agrees to email its disconnect notice to service-request@e2cc.com. Customer understands and agrees that billing will only cease when all information reasonably required by eSquared has been provided.

 

If eSquared is providing Services or intends to provide Services in whole or in part using facilities from any third party service provider, including but not limited to copper facilities acquired from a serving Local Exchange Carrier ("LEC"), and subsequently ascertains that said facilities are or will be unavailable for use, eSquared may cancel the affected CSO, or discontinue the affected Services, without liability or any further obligation to Customer. In addition, if certain facilities proposed for the Services are unavailable or deemed by eSquared to be unsuitable for the Services or speed requested, Customer will be so advised and may request different Services or speed, which may result in different or additional charges.

 

eSquared shall have the sole discretion whether to permit Customer to move a Service within the same serving wire center. If eSquared does permit Customer to move a Service within the same serving wire center, eSquared will provide Customer with a quote regarding the cost of such move which quote may contain both direct costs charged by eSquared's underlying carrier(s) or provider(s) in addition to all direct and administrative costs incurred by eSquared in connection with the move. Customer understands and agrees that eSquared may modify the rates and fees charged to Customer even if Service is moved within the same serving wire center. eSquared cannot guarantee that Customer may move a Service outside of the same serving wire center. Any request by a Customer to move a Service outside of the same serving wire center will be handled on an individual case basis, in eSquared's sole discretion. eSquared's inability to honor a move will not relieve Customer from obligation under the Agreement or in any applicable CSO.

 

Charges and Payment. eSquared will make reasonable efforts to set forth all applicable charges in the applicable CSO(s) and SOW(s). Fees for monthly recurring charges shall be invoiced by eSquared on a monthly basis in advance and nonrecurring charges shall be invoiced in arrears each month for the previous month's usage; provided, however, that eSquared shall have the right to bill Customer for any additional recurring and non-recurring charges incurred during any billing period for up to two (2) years following the close of that billing period. In addition, eSquared may, in its sole discretion, request a deposit amount equal to the last monthly invoice or the projected amount of the invoice for the upcoming billing period. Customer shall make all payments for all amounts not properly disputed as required hereunder by the due date printed on the invoice (the "Due Date"). Customer shall advise eSquared in writing in the event that it does not receive an invoice for any billing period; provided, however, that the failure by eSquared to deliver an invoice during any billing period and/or the failure by Customer to provide the required notice shall not relieve Customer of its absolute obligation to make all payments required hereunder in a full and timely manner. In the event that the Start of Service Date for any Service falls on any day other than the first day of any month, the first invoice to Customer shall consist of: (1) the pro-rated portion of the applicable monthly charge covering the period from the Start of Service Date to the first day of the subsequent month; and (2) the monthly charge for the following month. In addition to its other rights hereunder, in the event that any amounts are not paid in full by the Due Date, eSquared may: (1) impose a late payment charge of the lower of 2.0% per month or the highest legally permissible rate, and such late charge shall be payable upon delivery of eSquared's next invoice to Customer; (2) require security in the amount and form determined by eSquared, in its sole discretion, as a condition of the continued provision of all such Services; (3) suspend or terminate the Services immediately without notice and without liability of any kind or amount; and/or (4) repossess any equipment, fiber, circuits or any other items provided by eSquared to Customer hereunder. eSquared reserves right to replace current facilities with new facilities, including but not limited to loops, IP ports and IOC components. In the event eSquared seeks collection of any amounts not paid in full by the Due Date, either informally or through formal legal action, Customer shall be liable for all costs of collection, including but not limited to reasonable attorney's fees and court costs (if applicable). Any applicable sales, use, commercial or other taxes or fees imposed with respect to Services provided by eSquared (other than taxes on eSquared's income), as well as any other fees or assessments imposed by any governmental or quasi-governmental authority (including any private company or the like acting on behalf of such governmental or quasi-governmental authority) and any fees or charges which have the effect of increasing eSquared's cost of providing such Services, shall also be payable by Customer in addition to the other charges set forth in this Agreement. In addition to the other provisions of this, eSquared shall bill Customer a monthly Carrier Surcharge Recovery Fee ("CSRF") and any applicable taxes. The CSRF is a charge designed to recover, in part, eSquared's costs of purchasing local access service from LECs as well as Taxes, Fees and Surcharges (a summary of which may be found in Addendum 3) The CSRF is subject to change without notice and in eSquared's sole discretion. eSquared shall have the right to adjust its rates and charges, impose additional rates, charges or surcharges or change any other term of this Agreement (collectively, a "Change"). A Change shall become effective thirty (30) days after written notice of the Change has been provided to Customer; provided, however, that Customer may terminate any Service adversely affected by the Change (such termination to be effective upon the date the Change would have taken effect) by giving written notice of termination to eSquared within ten (10) days of its receipt of notice of the Change from eSquared If Customer does not terminate the adversely affected Service within ten (10) days of such notice, any Change shall be effective for the remainder of the Term. eSquared may, in its sole discretion, provide Customer with DNS support. If eSquared chooses to provide Customer with DNS support, eSquared shall charge Customer the sum of $1 per month, to load up to ten (10) DNS records on a single domain. If Customer needs more than ten (10) DNS records on a domain, there is a charge of $5.00 per each additional 10 DNS records. Reverse DNS may be provided at a rate of $0.21 per month, per IP address in a given LAN IP block. Only one Reverse DNS record with a single host can be loaded per IP address. In addition, eSquared may charge Customer the sum of $50 for every DNS or reverse DNS change made by eSquared in excess of one (1) change per calendar quarter. eSquared may, in its sole discretion, provide Customer with technical support. In the event eSquared provides Customer with technical support outside the scope of normal trouble shooting, eSquared shall charge Customer at a rate of $250 per hour for same. eSquared shall charge Customer a fee of $50 for every NSF check received by eSquared

 

Attorneys Fees and Costs. In the event eSquared seeks to enforce any of the terms or conditions of this Agreement or protect any of its rights or privileges hereunder, either informally or through formal legal action, Customer shall be liable for all costs incurred by eSquared as a result thereof, including but not limited to reasonable attorney's fees and court costs (if applicable).

 

Firm Order Commitment. No Firm Order Commitment ("FOC") issued by eSquared or its underlying carrier, if any, shall be considered guaranteed in any manner. In no way shall eSquared's inability or failure to deliver any ordered Service by the date of issuance of an FOC ("FOC Date") be considered a default under the Agreement and eSquared shall not be liable to Customer for any costs or damages of any kind that Customer may incur in anticipation of the FOC Date, including but not limited to lost revenue, lost profit, travel expenses, technician costs, etc.

 

CPNI. eSquared acknowledges that it has a duty, and Customer has a right, under federal and/or state law to protect the confidentiality of Customer's proprietary network information ("CPNI"). Such CPNI includes information about the telecommunications Services purchased by Customer from eSquared, Customer account activity (for example, telephone numbers) and charges incurred by Customer. With Customer's consent, eSquared may use this information for marketing purposes to offer Customer the full range of products and services available from eSquared that may be different from the type of Services Customer currently buys from eSquared In addition to private line and other dedicated transport services, eSquared and eSquared affiliate's offer other services, including voice, collocation, hardware (by sale or lease) and managed services. A more complete description of eSquared product and service offerings is available at www.e2cc.comor Customer may contact its eSquared account manager. eSquared may also share Customer information with its affiliates, agents and partners to offer the services and products described above. eSquared requires Customer's consent for eSquared and its affiliates, agents and partners to use this information to offer the services and products described above. By signing the Agreement and taking no further action, Customer gives eSquared Customer's consent to use and disclose Customer CPNI as described above. Customer may refuse CPNI consent by signing the Agreement but then notifying eSquared in writing of Customer's decision to withhold Customer's consent. Customer's consent or refusal to consent will remain valid until Customer otherwise advises eSquared Customer's decision to approve or disapprove use or disclosure of Customer CPNI as described in this section will not affect eSquared's provision of Service to Customer. A separate description of eSquared's CPNI Policy is set forth in Addendum 5, the contents of which are hereby incorporated in these T&Cs as if copied herein verbatim.

 

Resale Prohibition. Customer acknowledges and agrees that Customer may not sell, resell, transfer, convey, white label, wholesale or in any way distribute the Services to or for the benefit of any third party without express prior written consent of eSquared (which consent may be withheld in eSquared's sole discretion). The foregoing prohibition shall apply, without limitation, to any and all fiber, circuits, equipment or other Service elements which Customer purchases from eSquared.

 

Monitoring And Auditing. eSquared may monitor Customer's use of the Services electronically from time to time to insure eSquared's compliance with all governing SLAs and/or CSO's and/ or SAs and may disclose any information necessary to satisfy any Legal Requirement, to operate the Services properly, and/or to protect eSquared or its other subscribers.

 

Customer Must Back-Up Its Own Data and Files. eSquared shall have no responsibility for Customer's personal files and data (including voicemail, e-mail, or fax messages) that reside on, are transferred through, and/or that are attached to eSquared's Provided Equipment or network. Customer shall be solely responsible for independent backup of all such data and files. eSquared reserves the right to delete Customer's data and files after the expiration or termination of this Agreement.

 

eSquared Has No Control Over the Internet or Public Telephone Network. CUSTOMER ACKNOWLEDGES THAT eSquared DOES NOT OPERATE OR CONTROL THE INTERNET OR PUBLIC TELEPHONE NETWORK. CUSTOMER AND ITS AUTHORIZED USERS ASSUME ALL RISK OF LOSS OR DAMAGE THAT MAY ARISE FROM USE OR ACCESS TO THE INTERNET AND/OR PUBLIC TELEPHONE NETWORK, AND ASSUME THE SOLE RESPONSIBLY TO EVALUATE THE ACCURACY, MERCHANTABILITY, COMPLETENESS AND USEFULNESS OF ALL MERCHANDISE, OPINIONS, ADVICE, SERVICES AND OTHER INFORMATION PROVIDED THROUGH THE SERVICES OR ON THE INTERNET AND/OR PUBLIC TELEPHONE NETWORK.

 

CUSTOMER ACKNOWLEDGES THAT THE INTERNET CONTAINS UNEDITED MATERIALS, SOME OF WHICH ARE SEXUALLY EXPLICIT AND/OR MAY BE OFFENSIVE. CUSTOMER HAS AUTHORIZED ITS USERS' ACCESS TO THE INTERNET AND SUCH MATERIALS CONTAINED ON IT AT THEIR OWN RISK.

 

Modification to eSquared's Services. eSquared reserves the right to modify, revise, or upgrade its Monthly Recurring Services, including access procedures, menu structures, commands, documentation, vendors and Services offered; provided; however, eSquared shall not lower the bandwidth and/or other material features of the Services provided to Customer.

 

Restrictions on Certain Activities.

• Customer shall not use distribution lists or mass electronic mailing software or send unsolicited e-mail utilizing the Monthly Recurring Services without obtaining eSquared's prior written consent; except that Customer may send bulk e-mail to any entity with which it has a pre-established commercial relationship in accordance with governing law.
• Customer shall not use eSquared's trademarks, service marks, or trade names for advertising or promotion without eSquared's prior written consent.
• Customer shall not transmit, upload, receive, or store on or through eSquared's network any material that: (a) violates any Legal Requirement (including, but not limited to, those Legal Requirements relating to call recording); (b) infringes any intellectual property or proprietary right of a third-party; (c) contains material that in eSquared's reasonable opinion is fraudulent, illegal, threatening, obscene, libelous, or offensive; and/or (d) contains any viruses, worms, "Trojan Horses" or other code or features that may damage, disrupt or disable computers, networks or any information thereon. Customer's obligation to prevent the receipt of any information in sections a through d above shall be limited to using commercially reasonable efforts to prevent the receipt or continuing receipt of such information.
• Customer shall not engage in intentional or negligent activities while using the Services that are intended or likely to result in damage to any person, entity, or property including, but not limited to, any computer, network or the information thereon.
• Customer shall not disassemble, decompile, or otherwise tamper with eSquared's Provided Equipment and/or software residing thereon or with any Purchased Equipment or software.
• Customer shall not utilize the Monthly Recurring Services to host bandwidth intensive web servers, proxy servers or any other Internet server that would be atypical of an enterprise organization's normal office use without eSquared's prior written consent, which shall not be unreasonably withheld.
• If Customer receives Monthly Recurring Services, Customer shall not operate or conduct call center or telephone solicitation activities, or utilize streaming media servers, without eSquared's prior written consent, which shall not be unreasonably withheld, unless specifically provided in an agreed upon Customer Service Agreement. All such activities shall be undertaken by Customer in strict compliance with all governing Legal Requirements, even if authorized by eSquared.

Certain Customer Responsibilities.

 

Customer shall be responsible for providing, maintaining and supporting customer-managed applications, software and software licenses and Customer's LAN including, but not limited to, personal computers, site wiring, switches and related hardware, software, and peripherals, as well as providing electrical power to all devices and backup power supply if so desired. eSquared shall have no obligation to install, create, configure, or maintain any LAN or to configure, install or support any software, application or other equipment in or on Customer's computers or LAN unless specifically provided for in the CSO's or SOW(s). Even if eSquared deploys any Customer-provided equipment, software, applications and/or devices on Customer's premises, or installs Customer's applications on eSquared's servers on eSquared's premises, eSquared shall have no responsibility for maintaining or supporting any such Customer-provided computer, facsimile, telephone, paging, networking, software, licenses, applications, equipment or other device used by Customer whether used in conjunction with the Services or not. If Customer engages eSquared's technical support personnel to diagnose an issue and eSquared determines in its reasonable judgment that the issue is caused by a device, application, software or situation for which Customer is responsible, Customer shall pay for any time incurred by eSquared in diagnosing, troubleshooting, and/or repairing any of the above-mentioned equipment, software, applications or devices at eSquared's then-current hourly rates and terms for time and material service.

 

Customer and eSquared shall jointly agree on a user training plan that at minimum details the time(s) and location(s) for training and the amount of training time included for Monthly Recurring Services. In no event shall the length of training time included exceed that required to train in groups of less than five (5) users at a time. Customer shall make its personnel available for training at the times and locations set forth in such plan. If Customer fails to have its personnel available at the agreed upon times, Customer will pay for any additional time required by eSquared's trainer(s) at the rates set forth in any SOW Unless otherwise provided in the Agreement, training will be delivered remotely over eSquared's network.

 

911 Procedures and Disclaimers. FOR THOSE LOCATIONS WHERE ESQUARED PROVIDES INTERCONNECTED VOICE SERVICES TO CUSTOMER, ESQUARED AND CUSTOMER SHALL PREPARE A LIST CONTAINING THE SPECIFIC POSITION AND LOCATION OF EACH PHYSICAL IP PHONE INSTALLED, IN SUCH DETAIL AS REQUIRED BY E911 PROVISIONING GUIDELINES, FOR THE PURPOSE OF PROVIDING DETAILED LOCATION INFORMATION TO THE 911 OPERATOR WHEN 911 IS DIALED IN THE AREAS WHERE IT IS PROVIDED. UNLESS CUSTOMER CERTIFIES IN WRITING TO ESQUARED THAT ALL SOFTPHONE OR VIRTUAL TELEPHONES WILL BE OPERATED FROM A SINGLE DEFINED LOCATION PER DEVICE, ESQUARED WILL HAVE NO OBLIGATION TO AND WILL NOT PROVIDE E911 SERVICES. ESQUARED WILL PROVIDE STICKERS TO CUSTOMER FOR PLACEMENT ON EACH TELEPHONE PROVIDED BY ESQUARED INDICATING THE INSTRUCTIONS FOR DIALING 911 AND WHICH HAVE A WARNING NOTIFYING THE USER OF THE 911 LIMITATIONS. CUSTOMER SHALL BE RESPONSIBLE FOR IMMEDIATELY PROVIDING NEW LOCATION INFORMATION TO ESQUARED IN WRITING, OR OTHER METHOD APPROVED IN ADVANCE BY ESQUARED, WHEN A TELEPHONE, USER, OR DEVICE IS MOVED TO A NEW LOCATION, WHETHER THE TELEPHONE OR DEVICE WAS PROVIDED BY, THROUGH, OR FROM ESQUARED OR ANY OTHER PARTY. CUSTOMER ACKNOWLEDGES THAT 911 SERVICE IS NOT AVAILABLE IN THE EVENT OF A POWER FAILURE UNLESS EMERGENCY BACKUP POWER IS PROVIDED BY CUSTOMER. FURTHER, CUSTOMER ACKNOWLEDGES THAT ESQUARED RELIES ON THIRD-PARTIES TO PROVIDE 911 SERVICES AND TO ALERT LOCAL EMERGENCY RESPONSE CENTERS OF EMERGENCY SITUATIONS. THEREFORE, CUSTOMER SHALL INDEMNIFY AND HOLD ESQUARED, ITS OFFICERS, EMPLOYEES, AND AGENTS HARMLESS FROM ANY AND ALL CLAIMS ARISING FROM OR OUT OF CUSTOMER'S FAILURE TO TIMELY PROVIDE POSITION OR LOCATION CHANGE INFORMATION TO ESQUARED, FAILURE TO PROVIDE BACKUP POWER TO ALL TELEPHONES, SWITCHING, ROUTING, AND/OR OTHER TRANSMISSION EQUIPMENT, AND/OR THE FAILURE TO COMPLETE 911 CALLS, WHETHER SUCH CLAIMS OR ACTIONS ARE INITIATED BY CUSTOMER'S EMPLOYEES, GUESTS, OTHER PERSONS, OR A GOVERNMENT AGENCY.

 

Parts And Labor. The Agreement is inclusive of all parts and labor as it pertains to the CSO. The cost and purchase of necessary hardware and software is to be borne by the Customer. Sales and other similar taxes, tariffs, or other regulatory or governmental charges, if any, are to be borne by Customer and are not included in eSquared's prices.

 

Third Party Services. eSquared may arrange on behalf of Customer for services to be provided by a third party ("Third Party Services"). For instance, and by way of illustration only, Third Party Services may include Local Access Services. Local Access Services shall be arranged pursuant the Agreement and CSO. Although this Agreement governs the terms of eSquared's arrangement of Third Party Service, the service level parameters and related warranties (if any), pricing, surcharges, outage credits, required commitments, termination liability, and other service-specific terms of the Third Party Service shall be those of the provider of the Third Party Services ("Third Party Provider").

 

Subcontractors. eSquared may, at its discretion, engage subcontractors to perform work, provided eSquared shall fully pay said subcontractor and remain responsible for the proper completion of this Contract. eSquared warrants that eSquared and its subcontractors are adequately insured for injury to its employees and others incurring loss or injury as a result of the negligence of eSquared or its employees and subcontractors in performance of their work under this Contract.

 

Representation of Authority. The undersigned represents that he/she is authorized to enter into this Agreement and will indemnify eSquared from any liability arising from a breach of this representation. The undersigned further represents that the information provided in this Agreement and all CSO's are correct and that he/she has reviewed and understands the terms and conditions thereof and agrees to be bound thereby.

 

Force Majeure. If eSquared's performance of this Agreement or any obligation hereunder is prevented, restricted or interfered with by causes beyond its reasonable control including, but not limited to, acts of God, fire, explosion, vandalism, cable cut, power outage, storm or other similar occurrence including rain fade or other atmospheric conditions, any law, order, regulation, direction, action or request of any government, or of any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more of said governments, or of any civil or military authority, or by national emergencies, insurrections, riots, wars, acts of terrorism, strikes, lockouts or work stoppages or other labor difficulties, supplier failures, shortages, then eSquared shall be excused from such performance on a day-to-day basis to the extent of such prevention, restriction or interference. eSquared shall use commercially reasonable efforts under the circumstances to avoid and remove such causes of non‑performance and shall proceed to perform with reasonable dispatch whenever such causes cease. In the event the force majeure event prevents the use of any circuit provided as part of the Services and such force majeure event continues for a period of sixty (60) days, then either party may disconnect the affected circuit without incurring liability, except for Customer's liability for any charges.

 

Proprietary Information. Unless compelled by a court of law, the terms and conditions of this Agreement, any CSO, and all documents referenced herein including invoices are confidential and proprietary, whether or not marked or indicted as such, and shall not be disclosed to any third party or otherwise without prior written consent of eSquared. If Customer is requested or compelled by a court of law, it shall give notice to eSquared and eSquared shall have the right to defend or attempt to limit any such request. Further requirements related to confidential information may be set out in the T&C's.

 

Choice of Law/Venue/Dispute Resolution. Any disputes concerning this Agreement shall be governed and determined under Arizona law without giving effect to conflict of law principles. Disputes arising under this Agreement shall be resolved under the T&C's and venue shall exclusively be in Arizona in the County of eSquared main offices. Except for eSquared's collections suits which are not subject to the following arbitration provisions, before the initiation of any arbitration between the Parties, written notice of any claim, dispute or other difference (collectively, "Disputes") shall be provided. If the Dispute cannot be resolved within sixty (60) days of receipt of such notice, either Party may initiate arbitration of the Dispute. Disputes that arise between the Parties shall be exclusively resolved by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association with arbitration to occur in Arizona. Subject to the limitations of liability set forth herein, the arbitrator(s) may award declaratory relief, preliminary and permanent injunctive relief, and direct compensatory damages, but may not award any incidental, consequential, punitive or other damages disclaimed herein and each Party waives, to the fullest extent permitted by law, any claims for any such damages. To the extent such damages may not be so waived, if an arbitrator decides to award such damages they shall be limited to the total amount of charges paid by Customer to eSquared for the Services. The Parties agree that each Dispute will be resolved individually and shall not be resolved on a consolidated or class basis or joined with Disputes of any third-party in connection with the Service that is the subject of the dispute.