MASTER SERVICE TERMS
Latest version: September 2018
THESE MASTER SERVICE TERMS CONSTITUTE A BINDING AGREEMENT (REFERRED TO HEREIN AS THE “AGREEMENT”) BETWEEN NOBELBIZ, INC. (REFERRED TO HEREIN AS “NOBELBIZ”) AND YOU, ITS CUSTOMER (REFERRED TO HEREIN AS THE “CUSTOMER”).
NOBELBIZ IS IN THE BUSINESS OF PROVIDING LONG DISTANCE AND INTERNET CONNECTING SERVICES (“TELECOM SERVICES”) AND RELATED PERIPHERAL PRODUCTS (COLLECTIVELY THE “PRODUCTS”), AS WELL AS A CLOUD CONTACT CENTER CORE HOSTING PROGRAM, ADDITIONAL OPTIONAL MODULES, ONLINE AND PAPER DOCUMENTATION (THE “SYSTEM”), AS WELL AS LONG DISTANCE AND INTERNET CONNECTING SERVICES PROVIDED IN THE CONNECTION WITH THE PRODUCTS (“HS TELECOM SERVICES”)(THE “TELECOM SERVICES” AND “HS TELECOM SERVICES” SHALL BE REFERRED TO COLLECTIVELY AS “SERVICES”); AND CUSTOMER DESIRES TO PURCHASE NOBELBIZ SERVICES UNDER THE TERMS SET FORTH HEREIN.
FROM TIME TO TIME, NOBELBIZ MAY UPDATE OR AMEND THESE MASTER SERVICE TERMS. PRIOR TO SUCH CHANGES TO THESE MASTER SERVICE TERMS, NOBELBIZ WILL PROVIDE WRITTEN NOTICE TO CUSTOMER.
1. NobelBiz’s Responsibilities
NobelBiz agrees to provide to Customer Telecom Services pursuant to the terms set forth in this Agreement and an applicable service order pertaining to the provision of the Products, Telecom Services, and/or HS Telecom Services (each, together with all addenda thereto, a “Service Order”) any and all of which are hereby incorporated into this Agreement.
2. Customer’s Responsibilities
In furtherance of this Agreement, and as conditions precedent to NobelBiz’s obligations hereunder, Customer shall:
(a) Be responsible for all third party charges, materials, equipment, and labor necessary to connect Customer’s network (including to the delivered local loops).
(b) Pay the invoiced amount as set forth in any applicable Service Order for Services or Products in accordance with the terms of this Agreement and any applicable Supplemental Agreements, Service Orders, Exhibits, or Addenda attached hereto or otherwise executed by the Parties;
(c) Not permit or suffer the use of NobelBiz’s System, services, Products, or facilities for any use or purpose in violation of any law, rule or regulation;
(d) Obtain, at its own expense, any governmental or regulatory consents or certifications with respect to the utilization of NobelBiz’s services, network or Systems as contemplated by this Agreement and any applicable Service Order, and further to provide evidence of same to NobelBiz upon demand;
(e) Ensure that at least ninety percent (90%) of the domestic and international toll free inbound calls received using the Services are completed calls. Customer’s failure to meet this completed call minimum standard will result in additional charges as set forth in any Service Order, any addenda thereto or in the invoice, and shall be due and payable by the Customer within thirty (30) days of receipt of written notice from NobelBiz of such deficiency, and if unpaid by Customer beyond such thirty (30) day period, the delinquent balance will bear interest accumulating at the rate of 1.5% per month, or the maximum amount allowed by the law, whichever is less. If Customer’s incomplete toll free inbound calls for any billing period exceed ten (10%) of the total attempted calls to Customer during such period, then NobelBiz may, in addition to imposing the charges set forth above, pass through to Customer any charge assessed by any telecommunications provider in NobelBiz’s network for such incomplete toll free inbound calls. (f) Afford NobelBiz access to all of NobelBiz’s equipment over which Customer has control. Customer shall be liable for any damages caused to such equipment through Customer’s negligence or otherwise and shall promptly remit payment for such damages upon NobelBiz’s request. Upon termination or expiration of this agreement, NobelBiz shall have the right, but not the obligation, to require Customer to return all such equipment to NobelBiz or to relinquish ownership of the equipment to Customer. If NobelBiz chooses to take possession of such equipment, then Customer must, within fifteen (15) days, return the equipment to NobelBiz, and otherwise must pay NobelBiz the cost of the unreturned equipment within twenty four (24) hours, and should Customer fail to do so, the delinquent balance will bear interest accumulating at the rate of 1.5% per month, or the maximum amount allowed by the law, whichever is less.
3. Grant of License; Services. NobelBiz hereby grants to Customer a non-exclusive, revocable license to use the System subject to the pricing and other terms and conditions set forth herein, in the Agreement, and in any applicable Service Order. Further, NobelBiz agrees to provide, as part of the System, HS Telecom Services as specified in the applicable Service Order.
4. Limitations to Grant of License; Confidentiality; Restrictions.
(a) Ownership Rights. NobelBiz retains exclusive ownership and all right, title and interest in and to the Products. Any actions taken by Customer to protect its rights to its own products, including without limitation copyright or trademark filings, will not supersede or change the Agreement or any of NobelBiz’s proprietary rights to the Products.
(b) Confidentiality. Except as expressly permitted by these Master Service Terms, the Customer shall not: i) grant sublicenses to, sell, assign, give or otherwise transfer the Products or its rights thereto, in whole or in part; ii) modify, disassemble, decompile, reverse engineer, or otherwise re-create the Products, in whole or in part; iii) copy or otherwise reproduce the Products, in whole or in part; iv) disclose, divulge, or otherwise make available the System or Products, in whole or in part, to any competitor of Customer or of NobelBiz, or any other person except Customer’s officers, directors, authorized agents, and employees; or v) disclose the payment terms agreed to by NobelBiz and Customer under these Master Service Terms, the Agreement, its exhibits, and any Service Order, except to Customer’s officers, directors, employees, accountants or other authorized agents. Customer shall take all steps reasonably necessary to protect the confidentiality of the Products and to ensure that its officers, directors and employees adhere to the provisions of these Master Service Terms and any Service Order, including, without limitation, i) requiring all such persons to sign a confidentiality agreement upon NobelBiz’s request; and ii) treating the Products with the same degree of care that Customer treats its own confidential information.
(c) Survival. All of the provisions of this Section 4 will survive the termination of any Service Order and any other agreement between NobelBiz and Customer.
5. Training, Support, and Service. At no additional cost to Customer, with respect to the System, NobelBiz will i) provide support; and ii) provide patches and correct any identified “bugs” as reasonably practicable. While NobelBiz may attempt to help Customer solve other problems, NobelBiz has no obligation to address problems arising from Customer’s hardware or other software, compatibility problems between the System and Customer’s hardware and other software, or problems unique to Customer, which other System users do not experience.
6. Customer Provided Technology. Customer shall provide equipment, software, and technology of the quality and character necessary or required to operate in conjunction with the Products provided by NobelBiz, as may be determined by NobelBiz from time to time.
7. Copyright Indemnification. NobelBiz warrants that the Products and their components are either original to NobelBiz or duly licensed from third parties, and that the use of the Products do not violate or infringe upon any patent, copyright, trade secret or other property rights of any other person. NobelBiz agrees to indemnify, defend and hold Customer harmless from every expense, damage, or loss (including reasonable costs and attorneys fees) arising out of any claim that the Products or any part thereof constitutes an infringement or other violation of any patent, copyright, trade secret or other proprietary right of any other party. NobelBiz will pay any costs, damages or attorney fees finally awarded against Customer in such action which are attributable to such claim, provided NobelBiz is promptly notified in writing of such claim, may control the defense and/or settlement of such claim, and is provided with all requested assistance, information and authority. In the event that the Products become, or in NobelBiz’s opinion are likely to become, the subject of a claim of infringement of a United States patent, copyright or trade secret, NobelBiz may at its option either secure Customer’s right to continue using the Products, or replace or modify the Products to make it non-infringing. NobelBiz shall have no liability for any claim of patent, copyright or trade secret infringement based on the use of the Products in any form other than the original, unmodified, uncustomized form provided to Customer or the use of the Products with hardware, software or data not supplied by NobelBiz where the Products alone in their original, unmodified, uncustomized form would not constitute an infringement. The foregoing states NobelBiz’s entire liability for infringement claims or claims of infringement of patents, copyrights or other proprietary rights.
8. Limitation of Facilities. NobelBiz reserves the right to limit the facilities it assigns to terminate traffic for Customer. NobelBiz will use reasonable efforts to provide Customer with advance notice of any limitation of the facilities it assigns to Customer.
9. Pricing. The pricing for Services or Products is set forth in any applicable Service Order agreed upon and executed by the Parties. Any Service Orders, as applicable, are hereby incorporated herein, and shall be subject to the terms and conditions of this Agreement. Ordinary charges for travel and expense reimbursement will be set forth in Customer’s applicable Service Order. Further, NobelBiz reserves the right to charge additional fees for unusual or unexpected travel and related expenses incurred by its personnel in providing Products or Services for Customer and with Customer’s advance approval.
(a) Customer agrees to pay to NobelBiz, on a monthly basis, charges for Services and Products rendered by NobelBiz to Customer. Customer is fully responsible for all applicable usage, recurring and non-recurring charges, plus any applicable taxes and fees, including but not limited to all federal, state, local taxes and regulatory fees (e.g. Universal Service Fund contributions) sales or use taxes, and for all property taxes and other taxes applicable to Customer’s use of the Services and Products.
As a condition of Customer’s obligations under this Agreement, in order to ensure the prompt payment of sums due, Customer agrees to pay all invoiced charges within thirty (30) days of the date of the invoice (the 30th day representing the “Due Date”). If payment of charges is not received by Due Date, the delinquent balance will bear interest accumulating at the rate of 1.5% per month, or the maximum amount allowed by the law, whichever is less. Nothing herein shall be construed as constituting a waiver of NobelBiz’s right to declare a default by Customer under this Agreement or an applicable Service Order on account of any delinquency.
(b) Errors or disputes (including but not limited to those regarding particular calls) do not constitute grounds for delay in payment of the invoiced amount for Services or Products.
(c) Prepayment. NobelBiz may specify, by any means, including within an invoice provided to Customer pursuant to Section 11 hereof, whether a certain Service or Product must be prepaid. Customer will prepay as set forth herein, in an applicable Service Order, or in an applicable invoice. NobelBiz will provide monthly reconciliation invoices, via electronic mail, acknowledging the prepayment amounts received. If Customer fails to meet its payment obligations, NobelBiz may disconnect service unilaterally with twenty-four (24) hours’ notice.
(d) In relation to an executed Service Order, Customer may incur additional fees for requesting or causing any changes or modifications to an order for Services or Products after NobelBiz has implemented or provided, or initiated the implementation or provision, of such Service or Product. Such fees shall be reasonably determined by NobelBiz based upon the time and cost reasonably expended by NobelBiz to change or modify the order, and the cost of any such fee charged by NobelBiz shall be reflected on the subsequent invoice sent by NobelBiz to Customer, and Customer shall pay such charges within thirty (30) days.
(e) The charges listed in any Service Order and in its addenda are all-inclusive and there shall be no additional charges or fees of any kind, except that taxes and regulatory fees are subject to change. In particular, surcharges for short calls will not be charged unless otherwise approved in advance by Customer. To the extent that upstream providers begin charging surcharges for short calls after the inception of this Agreement, at Customer’s option, Customer may either:
Approve and accept such surcharges passed through to Customer from NobelBiz within ten (10) days of receiving notice from NobelBiz; or
Terminate this Agreement by providing a 30 day notice of termination within (10) days of receiving notice of such surcharge from NobelBiz. If Customer elects to terminate this agreement, no new surcharge will be imposed for 30 days starting the day on which NobelBiz notifies Customer of the new surcharge.
(f) Notwithstanding any other provision of this Agreement, Customer shall be responsible for any and all additional charges pertaining to late fees, cancellations, use requirements, incomplete calls, or other additional fees or charges explicitly set forth in any Service Order or in any addenda thereto, or provided in any invoice.
(a) NobelBiz shall provide an invoice once per month for the Services or Products provided hereunder in accordance with the then-current rates set forth in an applicable Service Order, as soon as practicable after the end of each month, or otherwise as soon as practicable after receipt of any applicable Service Order from Customer detailing Services or Products ordered from NobelBiz.
(b) Billing Disputes
Customer will be responsible for full payment of all charges as reflected on any NobelBiz invoice on or before the Due Date. Billing disputes do not constitute grounds for delay in payment. Any request for a billing adjustment must be made in good faith and in writing on or before the Due Date, or such dispute is waived by Customer. Any such request shall include detailed documentation to establish the basis for any adjustment. NobelBiz and Customer will promptly address and attempt to resolve any dispute within one billing cycle. Any amounts that are determined to be in error, or any credits to which NobelBiz agrees, will be credited against invoices following such determination. Such request for adjustment shall not be cause for delay in payment of the balance due.
(a) Customer’s acceptance of this Agreement constitutes Customer’s acceptance of NobelBiz’s initial and continuing credit approval procedures and policies. NobelBiz reserves the right to withhold initiation or full implementation of Services and Products described in any service schedule(s) or service order pending NobelBiz’s initial satisfactory credit review and approval thereof, which may be conditioned upon terms specified by NobelBiz, including, but not limited to a fixed credit limit and/or security for payments due hereunder in the form of an irrevocable letter of credit, cash deposit, or other means. Customer agrees to provide to NobelBiz, upon ten (10) days’ prior written notice, financial statements and/or other financial documents as NobelBiz may reasonably request. NobelBiz reserves the right to modify its requirements, if any, with respect to any security or other assurance provided by Customer for payments due hereunder in light of any increase in Customer’s usage or for any other reason which NobelBiz, in its sole discretion, believes affects Customer’s credit worthiness. .
(b) If at any time there is a material adverse change in Customer’s creditworthiness, then in addition to any other remedies available to NobelBiz, NobelBiz may elect, at its sole discretion, to exercise one or more of the following remedies: (i) cause the Service or Product commencement date described in any previously executed Service schedule or Service Order to be withheld; (ii) cease providing Services or Products and/or terminate this Agreement or any related Service Order; or (iii) condition provision of Services or Products on Customer’s assurance of payment within three (3) days of either a cash deposit, irrevocable letter of credit satisfactory to NobelBiz or other means to establish reasonable assurance of payment, each and all in NobelBiz’s sole discretion.
(c) An adverse material change in Customer’s creditworthiness shall include, but not be limited to: (i) Customer’s default of its obligations to NobelBiz under this or any other agreement with NobelBiz; (ii) failure of Customer to make full payment of all charges due hereunder or under any other agreement with NobelBiz on or before the Due Date; (iii) acquisition of Customer (whether in whole or by majority or controlling interest) by an entity which is insolvent, which is subject to bankruptcy or insolvency proceedings, which owes past due amounts to NobelBiz or to any entity affiliated with NobelBiz or which, in NobelBiz’s sole discretion, is a materially greater credit risk than Customer; (iv) Customer’s being subject to or having filed for bankruptcy or insolvency proceedings or the legal insolvency of Customer; or, (v) increase in Customer’s actual usage compared to any projected usage upon which any security requirements were previously based.
(a) NobelBiz may terminate this Agreement with Customer or any Service Order of Customer’s, and/or suspend or reduce any Services or Products provided to Customer under this Agreement, without liability to NobelBiz under the following conditions:
i. On sixty (60) days’ prior written notice to Customer for any breach of the Agreement, except (a) failure by Customer to pay in a timely manner any charges for services rendered (see Section 13(b)(ii).; (b) a failure by Customer to provide security as provided above (see Section 12); and/or, (c) in the event that NobelBiz deems such action necessary or desirable due to Customer’s use of the Services or Products for any unlawful purposes or in an unlawful manner, in which case NobelBiz may terminate Services or Products immediately.
ii. Upon Customer’s receipt of written notice from NobelBiz of usage in excess of credit limit and/or failure to remit payment or requested security in a timely manner, Customer shall have three (3) business days in which to cure, or be subject to termination or suspension of Services or Products by NobelBiz.
iii. In no event will this subsection impair the rights of NobelBiz to pursue remedies pursuant to any other section of this Agreement.
(c) In the event that this Agreement or relevant Service Order is terminated by either party, Customer shall pay to NobelBiz, immediately upon receipt of an invoice, any amount owed to NobelBiz through the termination date, and in cases of early termination, Customer will also immediately pay all recurring charges and minimum commitment amounts set forth on Customer’s applicable Service Order through the end of the term thereof.
(d) NobelBiz reserves the right, at its sole discretion, and without notice of any kind, to suspend or remove access to the Services or Products if not doing so would create a substantial risk to NobelBiz. NobelBiz will have no liability of any kind for suspension or removal of access to the Services or Products.
14. Confidentiality; Restrictions.
(a) In consideration of their respective rights under this Agreement, each party acknowledges that it may provide the other with confidential and proprietary information through the course of this Agreement or otherwise, including, but not limited to: marketing strategy, costs, rates, technical data, Customer information and other information specific to the divulging party (“Confidential Information”). Both NobelBiz and Customer agree not to divulge the Confidential Information of the other party to any entity or individual who is, or entity that is, not an employee, consultant, affiliate, or representative of either party with a valid reason to know such information or an upstream services provider of NobelBiz with a valid reason to know such information, except as required by law or in connection with the enforcement of this Agreement or any Service Order associated herewith. Customer and NobelBiz agree that this provision is binding during the period that Customer is buying Services or Products and for a term of two (2) years thereafter. If either party violates this provision, the other party may terminate this Agreement on sixty (60) days’ written notice. Further, each party agrees that it will not discuss the specific provisions and terms of this Agreement with any entity or individual, except those listed above and each party’s professional advisors with a need to know of this Agreement, unless required to do so by law or for the purposes of the Agreement’s enforcement. Notwithstanding the foregoing, either party may disclose Confidential Information and/or the provisions and terms of this Agreement if required to do so by legal compulsion, operation of law, or if necessary in any proceeding to establish or enforce rights or obligations under this Agreement. Further, Customer may disclose the existence of this Agreement with NobelBiz and the general nature of the business relationship.
(b) The parties also agree and stipulate that the potential damage from a breach of this provision would result in irreparable injury and that monetary damages would be difficult or impossible to calculate and would not provide full relief to the aggrieved party. Therefore, both parties agree that the aggrieved party may apply to a court of competent jurisdiction in the State of California, County of San Diego, for injunctive relief, including the issuance of mandatory permanent injunction.
(c) Use of Trademarks; Publicity.
Neither party shall reproduce, reference, distribute or utilize any registered or common law trade name, trademark, or service mark of the other, nor issue a press release or otherwise publicize the content of this Agreement or the details of the parties’ relationship, without the express written consent of the other.
(d) Mutual Restrictive Covenant.
NobelBiz and Customer agree that during the term of this Agreement and for a period of one (1) year after the date of termination of this Agreement, l neither will solicit for employment any, nor work nor accept such solicitation of any, of the agents, employees or salespersons of the other party except with the advance written consent of the other party.
(e) Restrictions on Use of the Products and Services. If and when applicable, Customer agrees that it is prohibited from and shall not in any way record, retain, or store the card security information from any payment card (including, without limitation, any card security code (CSC), card verification data (CVD), card verification number (CVN), card verification value (CVV or CVV2), card verification value code (CVVC), card verification code (CVC or CVC2), verification code (V-code or V code, card code verification (CCV) or signature panel code (SPC). Customer expressly acknowledges and agrees that, in accordance with the indemnification obligations set forth in Section 27 below, it shall indemnify and hold harmless NobelBiz, its stockholders, officers, directors, employees and agents from any and all loss, cost, damage, expense or liability, including, without limitation, court costs and reasonable attorneys fees from any and all liability arising from Customer’s failure to adhere to the restrictions set forth in this section.
(f) Survival. All of the provisions of this Section 14 will survive the termination of this Agreement.
15. No Warranties
NobelBiz agrees that it shall use its best efforts to provide Services and Products that are of a quality consistent with common carrier industry and other applicable industry standards. Except as provided in an applicable Supplemental Agreement or Service Order, NobelBiz makes no warranty of any kind, express or implied, including but not limited to, without limitation, i) the implied warranties of merchantability, description, or fitness for a particular purpose or function; ii) any warranty that the System, Services or Products, or Customer’s use thereof complies with any Local, State, or Federal law; and iii) any warranty that the Services or Products are compatible with any of Customer’s hardware or software. Customer expressly agrees that use of the Services or Products are at Customer’s own risk. NobelBiz does not warrant that the use of the Services or Products will be uninterrupted or that all communications will be delivered, nor does NobelBiz make any warranty as to any results that may be obtained by use of the Services or Products. Customer is fully responsible for its compliance with various Do-Not-Call and telemarketing regulations, such as the FTC’s Telemarketing Sales Rule. In many cases, compliance with these regulations includes, but is not limited to, the purchase and management of Do-Not-Call lists, maintaining calling history, and the reporting of call statistics. NobelBiz cannot be held responsible if Customer should violate any of those regulations; however, when possible, NobelBiz will have available, barring any unforeseen issues that are out of NobelBiz’s control to maintain the data and historical calling information for a time period sufficient for Customer’s retrieval of the data and information it may need, and it is the sole responsibility for Customer to acquire and maintain such data and information. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTIONS AND CLAIMS, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS.
16. Security, Privacy and Consent
(a) Security. Customer is responsible for all authorized or unauthorized access and all charges associated with authorized or unauthorized use, including but not limited to all liability associated with the fraudulent use of the Services or Products by Customer or Customer’s customers. Customer takes full responsibility for any illegal and unauthorized users that have obtained access to Services or Products. If Customer’s authorized or unauthorized users that have gained access to the Services or Products violate this Agreement, then the suspension or removal of access to the Services or Products will be implemented and the Customer will be liable for all fees, charges, and damages of any kind related to the use of the Services or Products.
(b) Privacy. NobelBiz will utilize Customer’s information for billing and payment issues, to inform Customer of access changes, events, or enhancements pertaining to the Services or Products. NobelBiz will not provide any information to outside entities without Customer consent except in the following circumstances: i) NobelBiz will not utilize any leads, recordings, or information within the Services or Products, except what is required to assist the Customer in support or diagnostics of a reported issues and; ii) no information will be divulged to outside parties except in cooperation with lawful Local, State, Federal, or Civil proceedings.
(c) Consent. Customer is fully responsible for all consent requirements from Local, State, or Federal agencies and laws. This includes but is not limited to the FTC’s Telemarketing Sales Rule, Federal and State Do Not Call Lists, Faxing laws, Cell phone laws and all applicable regulations associated to the use of the Services or Products. Customer agrees to hold harmless and defend NobelBiz in any case that is brought about due to the negligent use of the Services or Products.
17. Force Majeure. The parties’ obligations (except for Customer’s obligations to pay for Services and Products) under this Agreement and any Service Order are subject to, and neither party shall be liable for, delays, failures to perform, damages, losses, destruction or malfunction of any equipment or any consequence thereof caused or occasioned by, or due to, fire, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, cable or fiber cuts, or any other cause beyond the party’s reasonable control.
18. No Waiver. The waiver of any breach or violation of any term or condition hereof shall not affect the validity or enforceability of any other term or condition. Neither any delay on the part of any of the parties hereto in exercising its rights under this Agreement or any Service Order, nor any failure of any of the parties to insist on strict compliance with any provision hereof, shall be deemed to be a waiver of such rights or provisions or of any other rights or provisions hereof, and the waiver by any party of a breach by any other party shall not operate or be construed as a waiver of any other or subsequent breach.
19. Binding Effect. This Agreement and each Service Order shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. Neither party shall voluntarily or by operation of law assign, license, or otherwise transfer all or any part of its right or obligations in this Agreement (collectively, “Assignment”), without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, NobelBiz may assign this Agreement and any Service Order without prior notice or approval if such assignment relates to the purchase of all or substantially all of the stock or assets of NobelBiz. Any attempt to make an Assignment in violation of this provision shall be void. Customer and NobelBiz shall each provide written notice of any material change in ownership. Each party’s failure to comply with the assignment provisions, as contained in this paragraph, shall give the other party the option to either accept the other party’s assignee or terminate this Agreement. No Assignment shall otherwise release either Customer or NobelBiz from its obligations.
20. Amendment. Neither this Agreement nor any Service Order may be be amended except by an instrument in writing, executed by the parties.
21. Merger. This Agreement (including each related Service Order, any exhibits, and any subsequent addenda thereto) supersedes and merges all prior contracts, agreements, understandings, statements, representations, warranties, and indemnities and all inducements to making this Agreement relied upon by either party, whether written or oral, and this Agreement, and any additional Supplemental Agreements, exhibits, or Service Orders embody the parties’ complete and entire agreement with respect to the subject matter hereof.
22. Interpretation. The words and phrases used shall have the meaning generally understood in the contact center and telecommunications industries. This Agreement and each Service Order shall be construed in accordance with its fair meaning and not for or against either party on account of which party drafted this Agreement.
23. Regulations. This Agreement and each Service Order is made expressly subject to all present and future valid rules, regulations or orders of any court or regulatory body having jurisdiction over the subject matter hereof and to the laws of the United States of America and any of its states or any foreign governmental agency having jurisdiction. In the event this Agreement or any of its provisions is found contrary to or in conflict with any such order, rule, regulation or law, this Agreement shall be deemed modified to the extent necessary to comply with any such order, rule, regulation or law in such a way to be consistent with the form, intent and purpose of this Agreement. To the extent that NobelBiz provides a specific telephone number or numbers for Customer’s use, Customer acknowledges that NobelBiz’s ability to provide each number is subject to the Local Numbering Portability rules promulgated by the Federal Communications Commission and the number porting procedures and requirements of the number’s underlying telecommunications carrier. NobelBiz cannot and expressly does not guarantee that any telephone number provided will remain available for Customer’s use throughout the term of this Agreement, any Service Order, or beyond.
24. Representation of Authority. Each party represents and warrants to the other that the execution and delivery of the Agreement and each Service Order and the performance of such party’s obligations have been duly authorized and that the Agreement and Service Order are valid and legal agreements, binding on such party.
25. Agency. Neither party is authorized to act as an agent for, or a legal representative of, the other party, and neither shall represent that it is the agent or legal representative of the other without the others prior written consent to do so. No license, partnership or joint venture, express or implied, is granted by provider pursuant to this Agreement.
26. Limit of Liability
(A) AS A MATERIAL INDUCEMENT FOR NOBELBIZ TO PROVIDE SERVICES AND PRODUCTS HEREUNDER AT THE PRICES STATED, CUSTOMER AGREES THAT NOBELBIZ SHALL NOT BE LIABLE FOR ANY LOSS, EXPENSE OR DAMAGE FOR LOSS OF REVENUE, PROFITS, SAVINGS, BUSINESS OR GOODWILL, OR EXEMPLARY, PROXIMATE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES AND EXPENSES OF ANY TYPE OR NATURE, ON ACCOUNT OF ANY BREACH OR DEFAULT HEREUNDER BY NOBELBIZ OR ON ACCOUNT OF THE USE OF THE SERVICES OR PRODUCTS. NOBELBIZ WILL NOT BE LIABLE TO CUSTOMER OR CUSTOMER’S CUSTOMERS FOR ANY ACT OR OMISSION OF ANY OTHER ENTITY FURNISHING SERVICES OR PRODUCTS WHICH ARE REQUIRED BY CUSTOMER TO USE THE SERVICES OR PRODUCTS OR FOR ANY DAMAGE OR LOSS CAUSED BY THE FAULT OR NEGLIGENCE OF CUSTOMER OR BY THE FAILURE OF SERVICES OR PRODUCTS FURNISHED BY CUSTOMER.
NOTWITHSTANDING THE FOREGOING, NOBELBIZ’S LIABILITY TO CUSTOMER WILL IN NO EVENT EXCEED THE LESSER OF (i) THE AMOUNT PAID BY CUSTOMER TO NOBELBIZ FOR SERVICES OR PRODUCTS OVER THE SIX MONTH PERIOD PRECEDING THE EVENT FROM WHICH THE LIABILITY ARISES OR (ii) FIVE THOUSAND DOLLARS ($5,000.00).
(B) NOBELBIZ SHALL NOT BE RESPONSIBLE FOR THE INSTALLATION, OPERATION OR MAINTENANCE OF ANY EQUIPMENT OR SOFTWARE PROVIDED BY CUSTOMER, AND NOBELBIZ WILL NOT BE RESPONSIBLE FOR THE TRANSMISSION OR RECEPTION OF SIGNALS BY EQUIPMENT FURNISHED BY CUSTOMER
(C) CUSTOMER AGREES THAT NOBELBIZ SHALL NOT BE LIABLE FOR ANY LOSS, EXPENSE OR DAMAGE ARISING FROM OR IN ANY WAY RELATED TO CUSTOMER’S TEMPORARY OR PERMANENT LOSS OF USE OF OR ACCESS TO ANY SPECIFIC TELEPHONE NUMBER AS A RESULT OF SUCH NUMBER’S SERVICE PROVIDER HAVING BEEN CHANGED, IN ACCORDANCE WITH NUMBER PORTABILITY RULES OR OTHERWISE.
(D) CUSTOMER AGREES THAT NOBELBIZ SHALL NOT BE LIABLE FOR ANY LOSS, EXPENSE OR DAMAGE ARISING FROM OR IN ANY WAY RELATED TO CUSTOMER’S TEMPORARY OR PERMANENT LOSS OF USE OF OR ACCESS TO THE SYSTEM OR ANY FEATURE THEREOF.
27. Indemnity. Customer shall indemnify and hold harmless NobelBiz, its stockholders, officers, directors, employees and agents from any and all loss, cost, damage, expense or liability, including, without limitation, court costs and reasonable attorneys fees, arising out of, in whole or in part, directly or indirectly, the provision of Services or Products, including, without limitation, any claims that Customer has violated any Local, State, or Federal law, and any claims presented in through civil lawsuits. Further, Customer shall indemnify and hold harmless NobelBiz, its stockholders, officers, directors, employees and agents from any and all loss, cost, damage, expense or liability, including, without limitation, court costs and reasonable attorneys fees arising out of, in whole or in part, directly or indirectly, any claim of patent, trademark, service mark or copyright infringement or misappropriation of trade secret, in any way resulting from the acts, omissions or representations of Customer, including, without limitation, Customer’s modification of any hardware, software, equipment or other product or service provided by NobelBiz or the use of any of these in conjunction with any other hardware, software, equipment, product, or service. NobelBiz has the right, but not the obligation, at NobelBiz’s expense, to obtain private counsel for any matter to which the Customer’s indemnification responsibilities pertain.
28. Choice of Law and Jurisdiction. This Agreement and each Service Order is governed by the laws of the State of California, without regard to their conflict of law provisions. Any legal proceeding arising out of or related to this agreement must be instituted and maintained in the State of California and the County of San Diego. Customer consents to the jurisdiction of courts in the State of California. Customer waives any objections to such jurisdiction in any action arising out of this Agreement or any Service Order. In any action or proceeding arising out of this Agreement, the party prevailing in such action shall be entitled to recover its reasonable attorneys’ fees and costs from the other party.
29. Counterparts. Written versions of or attachments to this Agreement, including any Exhibits, Supplemental Agreements, Service Orders, and Addenda, may be executed in multiple counterparts, including by facsimile, each of which will be deemed an original, and all of which, when taken together, will be deemed to constitute one and the same agreement.
30. Severability; Reformation. No determination by any court, governmental body or otherwise that any provision of this Agreement or any Exhibit, Supplemental Agreement, Service Order, attachment, Addendum, or amendment hereof is invalid or unenforceable in any instance shall affect the validity or enforceability of (a) any other provision thereof, or (b) such provision in any circumstance not controlled by such determination. Each such provision shall be valid and enforceable to the fullest extent allowed by, and shall be construed wherever possible as being consistent with, applicable law. In the event that any of the provisions of this Agreement should be determined to exceed the limitations permitted by applicable law, then such provisions shall be reformed to, and deemed to provide for, the maximum limitations permitted by applicable law, and shall be construed as if such reformation were actually contained herein.
31. Injunctive Relief. Customer agrees that in the event of any breach or threatened breach of this Agreement or any Service Order, NobelBiz may be irreparably damaged, and money damages will be an inadequate remedy. Customer therefore consents to injunctive relief as well as any other relief, which might be available at law or equity, and waives any defense that money damages constitute an adequate remedy.
32. Forecasting. Customer shall provide NobelBiz with prompt and accurate traffic forecasting information each month in order to allow NobelBiz to provision the Services, including without limitation, regular forecasts, in a mutually approved format, regarding the number of minutes per month expected to be terminated in various countries and or cities, so as to enable NobelBiz to configure optimum network arrangements.
33. Entire Agreement. This Agreement, together with Customer’s signed Service Order and any subsequent signed Supplemental Agreements and any Exhibits, addenda or attachments thereto, constitute the entire Agreement between Customer and NobelBiz as to the subject matter hereof, and there have been no representations, promises or agreements made or relied upon except as expressly set forth herein. Notwithstanding the foregoing, upon notice to Customer, NobelBiz may, from time to time, update this Agreement to reflect changes to legal requirements or its business model.