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Master Services Agreement

THIS MASTER SERVICES AGREEMENT (“Agreement”) by and between the party that has electronically signed and/or accepted this Agreement and Netlink Voice, LLC (“Netlink Voice” or “Carrier”), having its business address for the purposes of this Agreement at 1060 E County Line Rd., Suite 3A, Ridgeland, MS 39157. This Agreement supersedes any previously agreed upon terms.

WHEREAS, Customer desires to engage Carrier to provide to Customer certain telecommunications- related services as described more fully herein and in any Service Order(s) issued hereunder;

WHEREAS, Carrier desires to provide said services; and

WHEREAS, this Agreement sets forth the terms and conditions for the provision of said services and shall govern any additional services purchased by Customer from Carrier following Customer’s initial acceptance of this Agreement.

NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the Parties do hereby agree as follows:

  1. DEFINITIONS Capitalized terms used herein have the meanings set forth hereunder. Terms that are neither capitalized nor otherwise defined in this Agreement are to be construed in accordance with their customary usage in the telecommunications industry. Unless otherwise stated, Section and Exhibit references refer to the Sections and Exhibits of this Agreement.
    1. Business Day(s). “Business Day(s)” means any calendar day in which the Carrier’s offices are open for business.
    2. Charges. “Charges” means charge(s) incurred by Customer for Services provided by Carrier within the scope of this Agreement.
    3. Event of Default. “Event of Default” means any of the events set forth in Section 9.
    4. Installation (to Install). “Installation” (or “to Install”) means the furnishing of Services by Carrier to Customer at a Site, by the scheduled date as specified in the Service Order(s).
    5. Installation Date. “Installation Date” means that date upon which Carrier is to complete Installation of Services at a given Site, as specified on the Service Order(s).
    6. Moves. “Moves” means a change of (i) Site, or (ii) Point of Demarcation between the Carrier’s network and the Customer’s facilities at a Site.
    7. Person. “Person” means an individual, partnership, limited liability company or partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, business unit, division or other entity of whatever nature
    8. Point of Demarcation. “Point of Demarcation” means the interface (such as a port or cross- connect at a Customer provided RG-45 jack or other mutually acceptable equipment) between the Parties’ respective facilities at a Site.
    9. Rates. “Rates” means the rates for Services set forth as specified on the Service Order(s).
    10. Regulatory Authority. “Regulatory Authority” means any federal, state, county, city or local governmental body which may lawfully exercise jurisdiction over the services rendered under this Agreement.
    11. Service(s). “Service(s)” means the telecommunications transmission capacity to be furnished by Carrier hereunder and/or any other services provided by Carrier within the scope of this Agreement, in each case as may be more fully specified on an applicable Service Order.
    12. Service Order(s). “Service Order(s)” means the initial request for Services, which may include Installation, and all subsequent Carrier services requested by Customer and provided by Carrier.
    13. Site(s). “Site(s)” means the Customer or Carrier locations set forth on the Service Order(s).
    14. Specifications. “Specifications” means the Service performance specifications set forth in an applicable Service Order.
    15. Term. “Term” means the period during which this Agreement shall be in effect, as set forth in Section 8.
    16. Third Party Services. “Third Party Services” means telecommunications transmission capacity services provided by a Person other than Carrier that serve to replace, modify, or are to be added to the Services.
  2. SERVICES
    1. Agreement to Provide Services. Carrier shall provide Services to Customer, and Customer shall pay for the Services, as further described herein.
    2. Installation. Carrier shall substantially complete Installation of Services at the Site(s) as specified in the Service Order no later than ninety (90) days from the applicable Installation Date specified therein; provided, however, Customer acknowledges and agrees that Carrier’s ability to complete the Installation may be contingent upon Third Party Services. Accordingly, Customer’s sole remedy for Carrier’s failure to complete any Installation is (i) to cancel the undelivered portion of the Installation request, and (ii) to purchase Third Party Services directly for any such Services that were not timely Installed by Carrier within said ninety (90) day period.
      1. Customer shall be solely responsible for the provision, operation, repair and maintenance of all equipment, facilities and service on the Customer’s side of the Point of Demarcation at each Site at which Services are installed.
      2. Carrier shall be solely responsible for the provision, operation, repair and maintenance of all equipment, facilities and service on the Carrier’s side of the Point of Demarcation at each Site at which Services are installed.
      3. As a condition precedent to Customer’s Installation obligation under this Section 2.2, Customer shall provide Carrier, at no cost to Carrier, access to, and reasonable space, power and environmental conditions at, the Point of Demarcation at each Site; including but not limited to, roof, window, equipment, battery and conduit space, air conditioning, rights-of-way access and fire protection, as applicable for the particular Installation. When the granting of any rights-of-way access to Carrier requires the consent of third parties, Customer shall obtain such consent on behalf of Carrier.
      4. The Parties shall arrange for Carrier’s access to the Customer’s Site(s) at any time reasonably requested by Carrier. Whenever possible, Carrier shall provide at least two (2) days’ written, facsimile or electronic notice to Customer prior to entering Customer’s Site(s) in order to install the services. Customer shall provide, promptly upon request (made in writing or otherwise), Carrier with access to Customer’s Site(s) at any time to maintain or repair any of the Services, subject only to Customer’s reasonable security procedures in effect from time to time.
      5. Neither Party shall adjust, align, attempt to repair, relocate or remove the other Party’s equipment, except as expressly authorized in writing by the other Party. Customer acknowledges and agrees that any Moves may result in the need for additional Services and may cause Customer to incur additional fees.
      6. Carrier’s equipment shall remain under the sole and exclusive control of Carrier, and nothing contained herein shall give or convey to Customer, or any other Person, any right, title or interest whatsoever in Carrier’s equipment. Carrier’s equipment shall at all times be and remain personal property, notwithstanding that it may be or become attached to or embedded in realty. Customer shall not (nor shall it permit any other Person to) tamper with, remove or conceal any identifying plates, tags or labels identifying Carrier’s ownership interest in Carrier’s equipment. Customer shall not permit any liens, security interests or any other encumbrances whatsoever to be attached to Carrier’s equipment.
    3. Provisioning of Equipment. If applicable to the Services, Carrier may provide certain equipment to Customer (the “Equipment”) as further described in an applicable Service Order. All Equipment shipments are F.O.B. Carrier’s facility. Carrier’s liability for delivery shall cease and title (if applicable) and all risk of loss or damage shall pass to Customer upon delivery to the carrier service (e.g. UPS or FedEx). Customer will be provided a twelve (12) month manufacturer’s warranty from the date of the purchase of Equipment. Customer shall be required to obtain authorization from Carrier to return any Equipment. Carrier will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty. Carrier will not cover replacement for lost, stolen, or modified equipment or equipment that is damaged due to unforeseen circumstances. Equipment returned by Customer that is not covered under warranty may be refused by Carrier, and Customer will be responsible to pay return shipping charges.
    4. Billing and Accounting. Unless otherwise set forth in a Service Order, Carrier shall invoice Customer in advance on a centralized basis at Customer’s notice address specified herein (or at such other address of which Customer may advise Carrier in writing in accordance with Section 10.2) for all Services and additional services provided during each calendar month or other mutually agreeable billing cycle. Customer shall pay Carrier for all Charges within ten (10) Business Days of the date set forth on the invoice.
    5. Subcontractors (Other carriers).
      1. Carrier may subcontract any or all of the work to be performed by Carrier hereunder, subject to the terms and conditions hereof; provided, however, Carrier shall remain responsible for all subcontracted work.
      2. Notwithstanding Section 2.5.1, other common carriers, including without limitation other local exchange carriers, interexchange carriers, wireless carriers, or cable companies, whether or not affiliated with Carrier, are not to be deemed subcontractors of Carrier for purposes of this Agreement.
    6. Prohibited Uses. Any use of the Services or any action that causes a disruption in the network integrity of Carrier or its vendors, directly or indirectly, is strictly prohibited and may result in termination of the Services at the sole discretion of Carrier. Customer agrees to not use the Services in any manner that violates applicable laws, infringes the rights of third parties, or interferes with other users, services, orequipment. Customer agrees and acknowledges that it is purchasing the Services and/or the Equipment for its own internal uses and shall not resell, transfer, or make a charge for the Services or the Equipment without the prior written consent of Carrier. The software associated with the Services is protected by copyright and Customer may not copy any such software or any portion of such software. Any use found to be inconsistent with this Section 2.6 will result in termination of the Services.
    7. Customer Responsibilities. Customer agrees that it is solely responsible for all its personnel and their use of the Services. This includes maintaining the confidentiality of passwords and accounts. Customer accepts full liability and responsibility for all use of the Services via Customer’s accounts, whether such accounts are accessed with or without Customer’s authorization or knowledge. Customer will immediately notify Carrier of any unauthorized use of its accounts or other breach of security related to the Services.
    8. Telephone Numbers. If applicable, any telephone number provided by Carrier (“Number”) to Customer shall be leased and not sold. Customer is not to use the Number with any device other than the Equipment. Carrier reserves the right to change, cancel or move the Number at its sole discretion. Upon expiration or termination of the Services for any reason, Customer will relinquish and discontinue use of any Numbers.
    9. E-911/911 Service and Limitations. Customer acknowledges that the Equipment and Services DO NOT support 911 emergency dialing or other emergency functions in the same way as traditional 911 emergency dialing. Carrier advises Customer to maintain alternative means of accessing traditional 911 services. Customer further acknowledges that the Services: (a) will not function in the absence of electrical power, (b) will not function in the absence or during an interruption of Customer’s internet access, (c) will not support emergency dialing if relocated outside of the United States, and (d) will not support emergency dialing if the Services have been suspended or terminated for any reason. E-911 services are not offered for virtual numbers, toll-free numbers, or similar services accessories or add-on plans and are subject to geographic availability. The local emergency service receiving E-911 calls may not have a system configured to E-911 services or be able to capture number and location information. Customer acknowledges that Carrier will not be liable for any service outage or inability to dial 911 or another emergency number using the Services due to the inherent characteristics and limitations of E-911 services and agrees to defend, indemnify, and hold harmless Carrier in connection with any and all claims, damages, fines, penalties, costs, and expenses (including without limitation attorney’s fees) relating to the failure or outage of the Services, including those related to 911 dialing. This indemnification supplements and does not limit the indemnifications and limitations of liability contained elsewhere in this Agreement. Customers who subscribe to E-911 services will be required to register the physical location of their equipment with Carrier. Carrier will charge Customer an additional monthly fee for E-911 services based on Carrier’s actual costs and expenses incurred in providing such services. CUSTOMER MUST INFORM ALL POTENTIAL USERS WHO MAY BE PRESENT AT THE PHYSICAL LOCATION WHERE THE SERVICES MAY BE UTILIZED OF THE DIFFERENCES AND LIMITATIONS OF CARRIER’S 911 DIALING VERSUS TRADITIONAL 911 DIALING. BY USING THE SERVICES, CUSTOMER AFFIRMS THAT IT HAS READ AND UNDERSTANDS THIS ADVISORY REGARDING THE LIMITATIONS OF CARRIER’S 911 SERVICE AND UNDERSTANDS THERE ARE MAJOR DIFFERENCES BETWEEN SUCH SERVICE AND TRADITIONAL 911 CALLS AND FURTHER ACKNOWLEDGES AND ACCEPTS THAT CARRIER’S SERVICES MAY NOT SUPPORT NOR PROVIDE EMERGENCY CALLS AT ALL TIMES.
  3. RATES, CHARGES AND PAYMENTS
    1. Rates and Charges. All Charges to Customer for Services provided hereunder will be calculated in accordance with the Rates listed in the applicable Service Order and paid in accordance with Section 2.4. If any Charges for the Services are due but unpaid, Carrier may suspend the Services until it receives payment. Overdue payments are subject to a financing fee of the lesser of 1.5% per month or the maximum allowed by law.
    2. Taxes, Franchises, Licenses and Permit Fees. Each Party shall be responsible for payment of (i) its respective federal, state, local or other applicable taxes or similar assessments and of (ii) any franchise, license or permit fees for any of its respective equipment, facilities, and/or real property. The Services are generally proposed exclusive of any federal, state or local taxes, which shall be added to each invoice for Charges. Customer shall pay any such taxes unless a valid exemption certificate is furnished to Carrier for the state of use.
    3. Utilities. Except as otherwise provided herein, each Party shall pay for its use of utilities services, including without limitation, gas, electric, water or other telecommunications services.
  4. REPRESENTATIONS AND WARRANTIES
    1. Compliance with Laws. Each Party represents, warrants and covenants that its provision of equipment, facilities or services hereunder shall be, during and throughout the Term, in material compliance with all applicable laws, including without limitation, all applicable rules, regulations and policies of all Regulatory Authorities.
    2. Compliance with Specifications. Carrier warrants that, after acceptance by Customer of any Services, such Services shall substantially comply with the Specifications throughout the Term. Carrier shall, at mutually agreed upon intervals and upon Customer’s written request, provide Customer with reports, test results and other documentation reasonably necessary to demonstrate the continuous operation of the Services substantially in accordance with the Specifications. Any other provision notwithstanding, Carrier makes no warranty whatsoever regarding any Third Party Services or any Service used in conjunction with or modified by Third Party Services, and Carrier shall not be liable for any such Third Party Services.
    3. Legal Authority and Enforceability. Each of Carrier and Customer represents and warrants the following: (i) its execution and delivery of this Agreement, and any collateral agreements related thereto, and the consummation of all transactions contemplated hereby, have been duly authorized by all requisite corporate action; (ii) this Agreement and all other agreements and obligations entered into and undertaken in connection with the transactions contemplated hereby to which either Party is a party constitute the valid and legally binding obligations of such Party, enforceable against such Party in accordance with their respective terms; (iii) the execution, delivery and performance by such Party of this Agreement and the agreements provided for herein, and the consummation of the transactions contemplated hereby and thereby, will not, with or without the giving of notice or the passage of time or both, (iv) materially violate the provisions of any law, rule or regulation applicable to such Party, (v) violate any judgment, decree, order or award of any Regulatory Authority binding upon such Party, or (vi) conflict with or violate the terms of any other agreement by which such Party or its property is bound.
    4. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4, CARRIER MAKES NO FURTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND/OR FITNESS FOR A PARTICULAR PURPOSE, AND NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CARRIER, ITS AGENTS, OR EMPLOYEES SHALL CREATE A WARRANTY.
  5. LIMITATION OF LIABILITY AND INDEMNIFICATION
    1. Limitation of Liability.
      1. Carrier’s and Customer’s aggregate liability for direct damages to one another under this Agreement shall not exceed the lesser of (i) one-hundred thousand dollars ($100,000.00) or (ii) the amount paid by Customer to Carrier over the preceding twelve months for the Services directly related to and giving rise to the claim.
      2. DAMAGES DISCLAIMER. NEITHER PARTY, NOR ITS AFFILIATES AND LICENSORS, ARE TO BE HELD LIABLE TO THE OTHER PARTY, OR ITS AFFILIATES AND LICENSORS, FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR HARM TO BUSINESS, LOST PROFITS, LOST REVENUES OR LOST SAVINGS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, THIRD PARTY CLAIM, OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OF ANY KIND), EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. Indemnification. Each party will indemnify, defend, and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s Site(s). The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
  6. SECURITY AND COMPLIANCE
    1. Third-Party Vendor Management. Carrier will ensure that all subcontractors and third-party providers involved in the delivery of the Services comply with the security obligations contained in this Agreement.
    2. Audit and Compliance. Carrier will deliver a summary of its most recent SOC 2 audit report to Customer upon Customer’s written request.
    3. Access Control and Authentication. Carrier will maintain access controls designed to ensure that only authorized personnel have access to systems that may store or otherwise process data submitted by Customer via the Services (“Customer Data”). Such controls include role-based access controls and multifactor authentication. Access rights will be reviewed and updated regularly, with prompt revocation of access for terminated personal or changes in job responsibilities.
    4. Business Continuity and Disaster Recovery. Carrier will develop, maintain, and regularly test a business continuity and disaster recovery plan designed to ensure the continued availability of the Services.
    5. Security Training and Awareness. Carrier will conduct regular security awareness training for all employees with access to Customer Data. Such training will include guidance on recognizing and reporting security incidents, understanding data protection responsibilities, and adhering to Carrier’s internal security policies and procedures.
    6. Customer Responsibilities. Customer is responsible for security relating to its environment and configuration of the Services. Carrier will have no obligations or liability with regards to any loss resulting from Customer’s security configuration or administration of the Services.
  7. RELATIONSHIP OF PARTIES
    1. Authority. The relationship between Customer and Carrier shall not be that of partners, agents, employees or a joint venture for or with one another, and nothing contained in this Agreement shall be, unless otherwise expressly set forth herein, deemed to constitute a partnership, agency, or employment agreement between them for any purpose, including but not limited to for federal income tax purposes. Neither Party has or shall have any authority to bind, assume any obligation for or incur any debt on behalf of the other Party. Customer and Carrier, in performing any of their obligations hereunder, are independent contractors and each shall discharge their respective contractual obligations at its own risk. This Agreement does not create a beneficial or other interest for any Person not a Party hereto, and nothing contained herein shall be construed to create any rights enforceable by any other Person or third party. Nothing in this Agreement is intended to provide any legal rights to anyone not an executing Party of this Agreement.
    2. Funding. If the Services hereunder are subject to governmental agency funding, the parties will cooperate to seek approval of the appropriate funding authority and the Service Order for the Services subject to funding shall be deemed contingent until such time as the funding agency approves the Service Order, at which time the parties hereby agree the Service Order shall become effective and legally binding.
  8. TERM, TERMINATION AND SLA
    1. Term of the Agreement. The Term of this Agreement will commence on the date this Agreement is electronically accepted by Customer and will continue until terminated as set forth below. The initial term of each Service Order will begin on the effective date of such Service Order and will continue for the subscription term set forth therein. Each Service Order will automatically renew for successive periods of equal duration pursuant to Carrier’s then-current terms and conditions, unless a party provides notice of nonrenewal to the other party in writing at least sixty (60) days prior to the expiration of the then-applicable subscription term. For the purposes of renewals, the renewal date will be calculated based on the Installation date.
    2. Termination by Either Party. Either Party may terminate this Agreement, without liability of any kind, in the event of one or more of the occurrence of an Event of Default with reference to the other Party’s obligations, as set forth in Section 9.
    3. General SLA Terms. Netlink Voice will be the only party to determine (in its reasonable discretion) whether Netlink Voice has not met any of the SLAs specified herein. Customer must at all times cooperate with Netlink Voice in testing, determining and verifying that a qualifying service outage has occurred.
    4. SLA Credit Request Process. In order to receive any of the SLA credits (specified herein) for Netlink Voice Broadband Service, the Customer’s Point of Contact (CPOC) must immediately notify Netlink Voice Broadband Customer Care of an occurrence within the Netlink Voice Broadband Service that results in the inability of Customer to transmit IP packets within the Netlink Voice Broadband Service (“Service Outage”).Netlink Voice Technical Support will investigate the reported outage and assign a trouble ticket number. Once Netlink Voice determines that the substantiated Service Outage that could qualify Customer for the SLA credit occurred (“Verifiable Trouble Ticket”), then Customer may request a Service credit within 30 days after the event giving rise to the credit by contacting Netlink Voice Broadband Customer Care support. A Verifiable Trouble Ticket must accompany Customer’s request for any SLA credit regarding the broadband service purchased by Customer. Credits appear on Customer’s bill for the Broadband Service within two (2) billing cycles, after such SLA credit has been approved by the Netlink Voice representative. Credits are exclusive of any applicable taxes charged to the Customer or collected by Netlink Voice.
    5. SLA Limitations. In any calendar month Customer’s aggregated SLA credits may not exceed, for any Broadband Service line, one month’s worth of the monthly service fee for the affected broadband Line. For the purpose of calculating SLA credits, this monthly service fee shall mean the monthly recurring charge for such line, but excluding, in all cases, (i) any monthly recurring fees for the Broadband Service features (e.g., domain name hosting or email service) and (ii) all one-time charges.
    6. SLA Exclusions.A Service Outage does not include an outage that occurs during scheduled periods of maintenance or upgrades.SLAs do not apply, and Netlink Voice is not responsible, for failure to meet an SLA resulting from:
      • The misconduct or accident of Customer behavior or Users of Service; • The failure or deficient performance of power, equipment, services or systems not provided by Netlink Voice;
      • Delay caused or requested by Customer;
      • Service interruptions, deficiencies, degradations or delays due to any access lines (i.e. POTS line) whether provided by Netlink Voice or by third parties, or Customer Premises Equipment (CPE) when provided by third parties;
      • Service interruptions, deficiencies, degradations or delays during any period in which Netlink Voice or its representatives are not afforded access to the premises where access lines associated with Broadband Business Service are terminated or Netlink Voice CPE is located;
      • Service interruptions, deficiencies, degradations or delays during any period when a Service Component is removed from Service for maintenance, replacement, or rearrangement purposes or for the implementation of a Customer order;
      • Customer’s election to not release a Service Component for testing and/or repair and to continue using the Service Component; and/or
      • Force Majeure conditions such as fire, explosion, lightning, power surges or failures, strikes or labor disputes, water, acts of god, the elements, war, civil disturbances, terror, acts of civil or military authorities, fuel or energy shortages, acts or omissions of suppliers or other causes beyond Netlink Voice’s control, whether or not similar to the foregoing.
      In addition, Broadband Service SLAs do not apply (a) if Customer is entitled to any other available credits, compensation or remedies under Customer’s Service Agreement for the same service interruption, deficiency, degradation or delay, (b) for service interruptions, deficiencies, degradations or delays not reported by Customer to Netlink Voice within a reasonable period of time, (c) where Customer reports an SLA failure, but Netlink Voice does not find any SLA failure, (d) any wholesale customer with access provided by Netlink Voice for resell to their end users and/or (e) to Broadband Sites that are not directly connected to the Netlink Voice Network.
    7. Use of Alternate Service. If Customer elects to use another means of communications during the period of interruption, Customer must pay the charges for the alternative service used.
    8. Network Availablity – 99.9%. Netlink Voice Points of Presence (POPs) on the IP Backbone Network shall be available 99.9% of the time in delivering traffic to/from other Netlink Voice POP locations on the IP Backbone measured over a calendar month. Network availability shall be calculated based on an aggregate monthly measurement average between Netlink Voice POP and customer endpoints. Customer shall be entitled to one (1) hour’s credit* from the Customer’s monthly recurring service fees for every hour that Netlink Voice fails to meet the aggregate network availability guarantee during any calendar month. Customer must report any failures to meet the network availability guarantee in writing to Netlink Voice within five (5) Business Days in order to be eligible to receive credit.Any calculation of network availability shall not include any unavailability resulting from: (a) scheduled network maintenance, (b) the occurrence of a Force Majeure event, (c) unavailability of an Netlink Voice Virtual POP or (d) the failure of non-service impacting equipment or systems responsible for network measurements.
  9. GROUNDS FOR TERMINATION AND REMEDIES
    1. Default by Carrier. An Event of Default shall have occurred with respect to Carrier if Customer experiences with respect to the Service, in the aggregate on a network-wide basis, six (6) or more interruptions during any consecutive period of six (6) calendar months, resulting in a cumulative disruption of Services of twenty-four (24) hours or more.
    2. Default by Customer. An Event of Default shall have occurred with respect to Customer if Customer shall have failed to make any payment due in accordance with the provisions hereof within thirty (30) calendar days of Customer’s receipt of notice of delinquency.
    3. Default by Each Party. Events of Default, with respect to either Party, shall have occurred by reason of any of the following: (i) any material misrepresentation or material breach of any warranty, representation or obligation contained in this Agreement; (ii) either Party ceases to do business as a going concern; or (iii) either Party makes a general assignment for the benefit of, or enters into any composition or arrangement with creditors; is unable to or admits in writing its inability to pay its debts a they become due; authorizes, applies for, or consents to the appointment of trustee or liquidator of all or substantial part of its assets or has proceedings seeking such appointment commenced against it which are not terminated within sixty (60) days of such commencement; files a voluntary petition under any bankruptcy or insolvency law or files a voluntary petition under the reorganization or arrangement provisions of the laws of the United States pertaining to bankruptcy or similar law of any jurisdiction or has proceedings under any such law instituted against it which are not terminated within sixty (60) days of such commencement; or has any substantial part of its property become subject to any levy, seizure, assignment or sale for or by any creditor or governmental agency without said levy, seizure, assignment or sale being released, lifted, reversed or satisfied within ten (10) days thereafter.
    4. Remedies. Either Party, in addition to all other remedies hereunder, may terminate this Agreement, upon the occurrence of an Event of Default by the other; provided, however, that the Party seeking termination shall have previously given the other Party notice of such Event of Default, specifically stating the nature of such Default, and (except with respect to Customer’s payment obligations or a default by either Party under Section 9.3 (iii) hereof) sixty (60) days from the date of receipt of such notice to cure such Event of Default.
  10. MISCELLANEOUS
    1. Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties’ respective successors and assigns. This Agreement shall be deemed automatically assigned to any successor- in-interest to either Party created by merger, acquisition, consolidation, spin-off or divestiture. Otherwise, this Agreement may not be assigned without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed.
    2. Notices. Any notice required or permitted to be given hereunder shall be (a) in writing, (b) effective upon receipt, and (c) delivered by one of the following means: (i) by personal delivery; (ii) by prepaid, overnight package delivery or courier service; (iii) by the United States Postal Service, first class, certified mail, return receipt requested, postage prepaid; or (iv) by prepaid telecopier, telex, or other similar means of electronic communication (followed by confirmation on the same or following day by mail as aforesaid). All notices given under this Agreement shall be addressed, in the case of Customer, as follows:

      3. Address listed on record at the time of electronic signing unless notified changes in writing. and in the case of Carrier, as follows:

      Netlink Voice
      1060 E. County Line Rd., Ste. 3A
      Ridgeland, MS 39157

      or to such other addresses or telecopier numbers of which the Parties have been advised in writing by any of the above-described means. Personal delivery to a Party or to any officer, partner, agent, or employee of such Party at its address herein shall constitute receipt. The following shall also constitute receipt: (i) a Party’s rejection or other refusal to accept notice, and (ii) the inability to deliver to a Party because of a changed address or telecopier number of which no notice has been received by the other Party. This Section shall not be construed in any way to affect or impair any waiver of notice or demand herein provided.

    3. Governing Law. This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its choice of law provisions, and the Parties hereto stipulate and submit themselves to the jurisdiction of the Delaware Courts. TO THE EXTENT EITHER PARTY SHALL SEEK RELIEF FROM A COURT OF COMPETENT JURISDICTION FOR ANY CLAIM OR DISPUTE, THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY COURT IN ANY ACTION FOR THE ADJUDICATION OF SUCH CLAIM OR DISPUTE.
    4. No Waiver. No waiver of any of the provisions of this Agreement shall be binding on either Party unless evidenced by a written notice or amendment signed by an authorized representative of the Party to be bound.
    5. Disputes. Carrier’s first intent is always to solve any dispute through constructive negotiation. Therefore, the parties agree that in the case of any controversy, dispute, or claim, arising out of, or relating to, this Agreement, or breach thereof, shall first be settled through good faith negotiation. Representatives from Carrier and Customer agree to first work toward resolution. If, within ten (10) Business Days, the issue cannot be resolved, it will be escalated to a designated member of executive management for each company who agree to meet within five (5) Business Days to address the issue.

      6. If it cannot be settled through negotiation, any dispute or claim arising out of, or relating to, the Services and/or this Agreement shall be subject to arbitration administered under the commercial arbitration rules of the American Arbitration Association in Dover, Delaware or such other location as the parties may mutually agree. The parties shall mutually select an arbitrator with at least ten (10) years of experience with commercial contracts, including, if possible, telecommunications industry contracts. If the parties cannot mutually agree on an arbitrator, the parties shall request from the American Arbitration Association a list of three (3) qualified arbitrators, and each party may strike one (1) member of the panel; the remaining member of the panel shall be the arbitrator. No pre- hearing discovery shall be permitted unless specifically authorized by the arbitrator. The arbitrator shall apply the laws of the State of Delaware, without reference to its conflicts of law provisions. The award and any findings of the arbitrator must be filed within thirty (30) calendar days of the arbitration hearing; such judgment shall be issued in writing and based upon legal principles. Judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties further agree that the arbitrator shall have no authority to award non-monetary or equitable relief, and any monetary award shall not include punitive damages. Nothing contained in this section will limit either party’s ability to seek injunctive relief in any court. The parties will mediate and arbitrate disputes in confidence. Each party shall bear its own costs incurred in connection with the arbitration. Other costs will be allocated as the arbitrator directs.

    6. Entirety of Agreement. This Agreement (together with its Exhibits attached hereto and Service Orders agreed to hereunder and the Agreement for Services) constitute the entire agreement between the Parties with respect to the subject matter hereof, superseding all prior understandings and agreements, written or oral, and may not be modified or altered except by a written instrument duly executed by the Parties. In the event of any conflict between this Agreement and any Service Order, the Service Order shall govern with respect to that Service Order only.
    7. Modification. Carrier may change this Agreement from time to time by posting a modified version on its website. Any modifications made by Carrier to this Agreement shall become effective upon renewal of Customer’s then-current subscription term or entry into a new Service Order, whichever is first.
    8. Severability. Any provision of this Agreement held or determined by a court (or other legal authority) of competent jurisdiction to be illegal, invalid, or unenforceable in any jurisdiction shall be deemed separate, distinct and independent, and shall be ineffective to the extent of such holding or determination without (i) invalidating the remaining provisions of this Agreement in that jurisdiction or (ii) affecting the legality, validity or enforceability of such provision in any other jurisdiction.
    9. Caption Headings. Captions and Section headings used in this Agreement are for convenience only and shall not be used to interpret any provision hereof.
    10. Remedies Cumulative and Nonexclusive. Except as otherwise set forth herein, all remedies provided for in this Agreement shall be cumulative, nonexclusive and in addition to, but not in lieu of, any other remedies available to either Party at law, in equity, or otherwise.
    11. Survival. The following provisions of this Agreement shall survive its termination (for any reason whatsoever) or expiration: Section 3, Rates, Charges and Payments; Section 5, Limitation of Liability; and any other provision which by its terms or by any reasonable interpretation thereof is intended to survive termination or expiration.
    12. Counterparts. This Agreement may be executed by written signature or electronically and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which taken together constitute one and the same Agreement.
    13. Agreement Not Exclusive. Except as otherwise provided herein, this Agreement is not exclusive and either Party may engage in and possess interests in other business ventures of any nature whatsoever, and may conduct and in engage in all other activities in connection with the sale, lease, purchase, or provision of fiber optic and other communications facilities and services. Without limiting the generality of the foregoing, nothing in this Agreement shall be construed or interpreted to prohibit Carrier or Customer from installing or permitting others to utilize or install additional communications capacity, including, without limitation, fiber optic transmission capacity, within or adjoining the property constituting the fiber route, or from operating such fiber or other communications capacity (alone or in combination with other Persons) in competition with the Customer’s use of the Services, or from leasing, supplying, selling or otherwise providing additional fibers or telecommunications transmission capacity to third parties.
    14. Further Assurances. From and after the date of this Agreement, each of the Parties shall, from time to time, at the request of the other Party and without further consideration, do, execute and deliver, cause to be done, executed and delivered, all such further acts, things and instruments as may be reasonably requested or required more effectively to evidence and give effect to the transactions contemplated by this Agreement.
    15. Force Majeure. Neither Party shall be liable to the other for any delay, impairment or failure to perform during any period in which such delay, impairment or failure is (i) due to causes beyond its control, and (ii) without such Party’s fault or negligence (a “Force Majeure”), including, but not limited to, fires, floods, epidemics, third-party negligence, quarantine restrictions, war, labor disputes and freight embargoes.

      16. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly respective authorized officers on the date of electronic signature and/or acceptance.