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Terms & Conditions
Terms & Conditions (Communications)
Effective Date: July 26, 2017
The following terms and conditions (“Terms & Conditions”) apply to any party (“Company”) obtaining Services provided by or Equipment sold or rented by ITC or any Affiliate of ITC (“ITC,” “we,” “us” or “ours”) (either individually, a “Party,” collectively, the “Parties”). These Terms & Conditions expressly incorporate by this reference ITC’s Acceptable Use Policy (http://www.itcglobal.com/acceptable-use-policy) and ITC’s Definitions (Communications) (https://www.itcglobal.com/definitions-communications/) , both of which ITC may update from time to time upon notice to Company.
1. Purpose & Scope
A. Acceptance of Terms & Conditions: Company’s execution of a Control Agreement (Communications) or Service Order with ITC constitutes Company’s acceptance of these Terms & Conditions, which, taken together with ITC’s Acceptable Use Policy, the applicable Control Agreement executed by the Parties, Service Orders placed thereunder or independently, and any attachments thereto will govern the provision of Network Services to Company and will constitute a binding agreement in accordance with all such terms (the “Agreement”).
B. Applicability: These Terms & Conditions apply to all Service Orders unless otherwise agreed in writing signed by authorized representatives of both Parties. Service Orders are subject to ITC’s acceptance, which we may withhold for any or no reason. Any Service Order prepared by Company will be treated as an administrative document only and, notwithstanding anything therein to the contrary, will not add to, delete from, or change any Agreement, even if such new terms expressly supersede the Agreement and ITC executes or otherwise agrees to such Service Order or begins performance thereof.
A. Importation & Exportation of Equipment: Company will, but ITC may elect to, manage the logistics of importation or exportation of Equipment to and from remote sites or local jurisdictions. In either case, Company shall pay all costs associated with such importation and exportation, including but not limited to licenses, taxes, tariffs, or duties. In the event that Company obtains licenses or pays required local taxes, tariffs, or duties, Company will provide documentation and verification thereof upon ITC’s request. In the event ITC obtains licenses, or pays taxes, tariffs, or duties on behalf of Company, Company will promptly upon notice thereof reimburse ITC for said expenses.
B. Export Controls & Sanctioned Countries: Company acknowledges and agrees to comply with all U.S. export control laws and any other applicable export/import control laws. Without limiting the foregoing, in no instance may Services be used in or Equipment imported into the following countries without the express written consent of ITC, which will only be provided upon a showing to ITC’s discretionary satisfaction that the proposed use or importation is licensed or otherwise authorized by the applicable U.S. government authority: Cuba, Iran, Syria, Sudan, and North Korea.
C. Health, Safety & Environment Compliance: Where required by law or regulations, Company policy, or at the request of ITC, Company will install, maintain, and pay reasonable expenses we incur to provide special facilities and protective apparatus for situations including, without limitation, high voltage power, hazardous materials, heights, industrial operations, offshore or cold water environments, etc.
D. Privacy: Company warrants that Company will obtain, whenever required under applicable law, legally binding, effective, and transferable consent sufficient for collection and processing of Personal Data by ITC in conjunction with the Network Services provided hereunder and subject to all other terms governing the handling of Personal Data as set forth in the Agreement. Company and ITC agree that (a) Company will transfer the consent to ITC, as necessary, (b) consent obtained in accordance with this provision shall not exceed the scope and duration necessary to complete the performance under the Agreement, and (c) while performing the Agreement, ITC will not exceed the limitations of the consent.
E. Legal & Anti-Corruption Compliance: Both ITC and Company will fully abide by all applicable laws, rules, and regulations, including, without limitation, all applicable anti-bribery, anti-corruption, and anti-boycott laws including, without limitation, United States Foreign Corrupt Practices Act, UK Bribery Act, and the Organization for Economic Co-operation and Development’s Anti-Bribery Convention and Anti-Boycott Regulations. If Company receives Service on a Vessel, Company shall comply with all applicable laws of that Vessel’s flag state, but the laws of such flag state will not apply to any disputes arising out of or related to the Agreement. ITC will not pay any commissions or fees nor grant any rebates to any of Company’s employees or officers, nor favor any of Company’s employees or officers with gifts or entertainment of other than nominal value, nor enter into business arrangements with any of Company’s employees or officers, other than as Company’s representative, without Company’s prior written approval.
F. Violations: If ITC reasonably believes that Company has violated any term in this “Compliance” section, including, without limitation, investigation of Company by any law enforcement or regulatory agency, ITC may upon immediately suspend Service or terminate the Agreement or any portion thereof without liability, provided that ITC shall notify Company in writing before such suspension or termination if practical to do so and permitted by applicable law. In the event of such suspension, Company shall continue to pay all amounts due under the Agreement. In the event of such termination, Company shall immediately pay ITC the Termination Fee.
A. Credit Authorization: ITC may require Company to complete a credit authorization form, including audited financial statements, or to provide a third-party guarantee, deposit, letter of credit, or other credit facility we deem, in our discretion, necessary to provide adequate assurance of payment (“Payment Guarantee”). If ITC requires any Payment Guarantee, Company may provide it in any form acceptable to ITC, which will not unreasonably withhold such acceptance. The provision of such third party guarantee, deposit, letter of credit, or other credit facility does not relieve Company of its payment obligations specified herein.
B. Billing Commencement: Billing for Services (or any part thereof) will commence upon the Acceptance Date for each network site. All charges will be in accordance with the applicable Service Order for the applicable Network Services. Upon expiration of the applicable term of the Network Services, ITC reserves the right to revise such charges upon notice to Company.
C. Equipment Billing: Unless otherwise agreed in writing by the Parties, invoices for Equipment will be sent on or after the date of shipment and will include all applicable federal, state, provincial, local, VAT and other taxes that may be levied upon the Equipment.
D. Network Services Billing: Unless otherwise agreed in writing by the Parties, ITC will invoice and Company will pay monthly in advance for the Network Services provided by ITC, including, without limitation, all applicable federal, state, provincial, local and other taxes, including value added tax and fees, including, if applicable, any fees established by any regulatory authority, which may be attributable to the sale or use of Network Services (regardless of whether or not an invoice for such fees is sent to Company by ITC). Notwithstanding any language in the Agreement to the contrary, ITC may require Company to place a deposit immediately upon execution of any Service Order in an amount to be determined.
E. Payment Terms: Company will pay all invoices within thirty (30) days of the date of invoice and in accordance with the payment instructions as stated on the invoice. Amounts not paid within thirty (30) days of invoice date will be subject to an interest charge of the lesser of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law. Company will pay for any and all collection or litigation expenses, including reasonable legal fees, incurred by ITC in collecting any late payments or late payment fees or charges.
F. Taxes: In the event that any tax, duty, import fee, custom fee, levy, penalty, etc., becomes payable in any territory either by deduction or for which ITC may be required to make a withholding payment, all such taxes, duties, fees, levies, penalties, etc., will be added to Company’s account and be payable to ITC in addition to amounts due for services rendered. ITC will provide reasonable assistance to Company to minimize the amount of such withholdings or deductions, including providing any relevant certification of its status as a non-resident or its entitlement to benefits under a treaty.
G. Payment Disputes: Company must pay all invoiced amounts when due. If Company disputes any portion of an amount due, Company must, within thirty (30) days of the invoice date containing such disputed amount, give notice to ITC of the Disputed Amount and include in such notice the specific details and reasons for disputing each item. For clarity, claims of unauthorized use, fraudulent use, or any other misuse will not constitute a valid basis for dispute of an invoice. If the Disputed Amount is resolved in favor of ITC, Company must pay the Disputed Amount with appropriate late charges, if applicable, upon final determination of such dispute. ITC will issue credits to Company upon resolution of any Disputed Amounts in favor of Company. An invoice is deemed to be accepted if no written notice of a dispute is provided before the date the payment is due.
4. End of Term & Termination
A. End-of-Term Notification: Unless a Party notifies the other at least thirty (30) days prior to the end of any Service Order Term, that Service Order will automatically renew for up to two successive one year terms (individually or collectively a “Service Order Term”). Upon a Service Order’s termination, Company shall promptly comply with ITC’s instructions regarding return of the Equipment.
B. Termination Fee: Unless otherwise stated in the applicable Service Order, the minimum term of Network Services is thirty-six months from the Acceptance Date. Notwithstanding the foregoing, Company may terminate early at any time upon thirty days prior written notice to ITC, provided that Company immediately pays ITC a Termination Fee, as liquidated damages and not as a penalty, equal to the balance of the applicable remaining Service Order Term (in months or pro-rated portions thereof) multiplied by the monthly recurring fees for the terminated Network Services.
C. Company Default or Breach: The occurrence of any one or more of the following events will constitute an event of default and breach of the Agreement if not remedied within ten days after written notice from ITC:
i. Use of the Network Services in any manner or for any purpose contrary to the provisions of these Terms & Conditions or ITC’s Acceptable Use Policy, which ITC may change at any time for any reason upon notice to Company;
ii. Failure to make any payments when due;
iii. Discovery by ITC that any representation or warranty Company has made in any document Company has furnished to ITC is incorrect;
iv. Company’s breach or violation of any of these Terms & Conditions; or
v. Commencement of any proceeding, whether voluntarily or involuntarily, relating to Company under any law relating to insolvency, bankruptcy, or the protection of creditors’ rights generally; or
vi. Admit to any Person in writing its inability to pay its debts generally as they become due; or
vii. Make a general assignment for the benefit of creditors.
D. Suspension of Services for Breach: In the event of a Company breach of any of the provisions contained in section 4(C) of these Terms & Conditions, ITC may, at our sole option and without limiting any other rights and remedies we may have, suspend the Network Services without notice or liability. Company’s obligation to make payments hereunder will continue during any such periods of suspension. ITC may immediately suspend all or any portion of Network Services without notice for any violation of ITC’s Acceptable Use Policy by Company or any End User until Company rectifies such violation to ITC’s reasonable satisfaction.
E. Termination for Breach: In the event of Company’s default or breach, ITC may immediately terminate the Agreement, the applicable Network Services or Service Order, or any combination thereof. ITC will bill Company and Company will pay ITC all outstanding charges accrued up to and outstanding on the date of such termination. In addition, Company agrees to pay ITC immediately the Termination Fee. In all such cases, ITC will incur no liability whatsoever. Company will be liable for all costs and expenses incurred by ITC due to Company’s default, including, without limitation, attorney fees. The rights of termination, restriction or suspension set forth in this article are in addition to any other remedies available to ITC under these Terms & Conditions, at law, or in equity.
F. Termination for Legal or Regulatory Requirements: ITC may, without liability whatsoever, suspend or terminate Network Services to Company upon receipt of an order that ITC reasonably believes to be lawful to cease operation of such Network Services by the Federal Communications Commission, a state or federal court of law, or any other lawful foreign, federal, state, or local governmental authority. If at any time during the term of the Agreement any equipment, facilities, or property used by ITC to provide Network Services to Company are taken for a public or quasi-public purpose by a lawful power or authority under the exercise of right of condemnation or eminent domain, ITC will have the right, upon written notice to Company, to terminate the Network Services affected. In any of these events, ITC will bill Company and Company will promptly pay ITC for all outstanding charges accrued up to and outstanding on the date of such termination.
A. The Parties may exchange their respective Confidential Information to facilitate performance of the Agreement. Receiving Party agrees (1) not to disclose the Confidential Information to anyone other than those of its employees (or those of ITC’s Affiliates) with a need to know the same, except as the Disclosing Party may otherwise agree in writing; (2) to use the same degree of care as it uses to protect its own confidential information (but in no case less than reasonable care) in protecting the Disclosing Party’s Confidential Information; (3) not to copy or reverse engineer any Confidential Information disclosed under the Agreement; (4) not to remove any ownership or confidentiality notice contained within the Confidential Information; (5) to promptly report to the Disclosing Party any actual or suspected breach of this Article; and (6) to take all reasonable steps requested by the Disclosing Party to prevent, control, or remedy any breach of the Agreement.
B. The obligations under the Agreement shall not extend to Confidential Information that the Receiving Party can demonstrate via written records:
i. was in the public domain at the time it was disclosed; or
ii. becomes part of the public domain at no fault of the Receiving Party including, without limitation to disclosure in a U.S. or foreign patent; or
iii. was known to the Receiving Party at the time of disclosure; or
iv. is independently developed by the Receiving Party’s employees who had no access to the Confidential Information; or
v. is received from a third party not having confidentiality obligations to the Disclosing Party; or
vi. is disclosed by the Receiving Party pursuant to a judicial order, a requirement of a governmental agency, or by operation of law, provided that the Receiving Party gives the Disclosing Party timely notice of such order or requirement; or
vii. is approved for release upon the Disclosing Party’s prior written consent.
C. Receiving Party’s confidentiality obligations under the Agreement shall survive for a period of sixty (60) months following termination of the applicable Control Agreement or final Service Order issued thereunder, whichever occurs later.
D. Confidential Information is provided “AS IS.”
E. The Parties understand that by disclosing the Confidential Information to the Receiving Party, the Disclosing Party does not grant any express, implied, nor other licensing right to use the Confidential Information except as necessary to perform Receiving Party’s duties under the Agreement.
F. The Receiving Party shall comply with all laws, rules, and regulations applicable to the export of the Confidential Information. Furthermore, the Receiving Party shall not export nor re-export such Confidential Information without any applicable approval or license required under such laws, rules, and regulations.
G. Upon the written request of the Disclosing Party, the Receiving Party shall return or destroy all Confidential Information, including all notes and analyses created from information contained in the Confidential Information. Furthermore, the Receiving Party shall provide the Disclosing Party with a written statement certifying that the Confidential Information has been returned or destroyed. Notwithstanding the above, the Receiving Party may retain one (1) copy of the Disclosing Party’s Confidential Information in a secure location within the Receiving Party’s legal department solely for evidentiary purposes. Such copy shall remain expressly subject to the provisions of the Agreement.
H. Non-Solicitation: Company agrees that during the term of service and for a period of twelve (12) months following the termination of Network Services, Company will not solicit or hire any ITC employees or those of any ITC Affiliate without prior written permission from a member of senior management (i.e., Sr. Vice President or above) of ITC.
I. Survival: For avoidance of doubt, the confidentiality and non-solicitation terms and conditions shall survive the expiration or termination of the Agreement.
J. Existence of Agreement: Notwithstanding the foregoing, ITC reserves the right to disclose to any third party the existence of these Terms & Conditions and any other agreement between the Parties and to publish Company’s name and/or logo in a list of ITC customers, without disclosing the specifics of the Agreement and without implying any endorsement by Company.
A. Movement/Additions/Changes: Company agrees to use ITC required processes and systems for the notification and execution of any movement of Equipment, additions, or changes to the location of Equipment or Services or specifications of any site location. Company agrees to provide ITC with a minimum of thirty days written notice prior to any intended move of a site location or modification of the specifications of any site location. Such moves, additions, and changes may be executed in a shorter time-frame with ITC’s consent and subject to payment of applicable Expedite Fees. Such moves, additions, and changes may subject a Company site to additional fees or different pricing for Network Services based on the new location or specifications.
B. ITC as Agent of Company: Company may, subject to ITC’s consent, appoint ITC as its agent for purposes of procuring Facilities to terminate Company’s calls to Company’s designated location. Company will be responsible for payment for all such Facilities. Company will be liable and responsible for all actions and obligations incurred on Company’s behalf by ITC in its capacity as Company’s agent pursuant to this Article, and shall accept and pay us for all flow-through costs associated with such Facilities (or the termination of such services), including, without limitation, all installation fees, monthly recurring fees, cancellation or termination fees, plus any applicable taxes.
C. No Right of Resale: Unless the Parties have executed an agreement expressly authorizing Company to resell Network Services, Company agrees that the Network Services provided by ITC are for the exclusive use of Company and its End Users and may not be resold or otherwise re-distributed to other third parties without the express written permission of ITC. Such permission may be granted, at ITC’s sole discretion, and may be subject to additional fees, Company obligations, or exceptions.
A. Licensing: ITC may elect to obtain any licenses, permits, or authorizations, and associated expenses, as may be required to operate satellite based communications services in a specific country or jurisdiction where Company intends to utilize ITC Services. Absent any such election in writing by an authorized representative of ITC, Company shall manage all such logistics. In the event that Company obtains such licenses and permits, Company will provide ITC with verification and documentation of such licenses and permits upon request. In the event that ITC obtains licenses, permits and other authorizations on Company’s behalf, Company will promptly reimburse ITC for all related expenses. Company is ultimately responsible for compliance with all local licensing laws and regulations in any jurisdiction in which Company uses Network Services. If Company obtains any such licenses, authorizations, or permits, Company shall defend, indemnify, and hold ITC harmless from and against all claims, liabilities, and fines, including, without limitation, all costs and expenses (including, without limitation, attorney fees) incident thereto or incident to establishing the right to indemnification, arising out of or relating to licenses, permits, and approvals necessary or advisable for resale and use of the Network Services.
B. Local Jurisdiction: ITC will not be held responsible for any operational restrictions, customs, or license or permit fees required for operation of the Network Services in the destination country. In addition, ITC will have no responsibility for fines associated with terminal seizure for legal ramifications of using Network Services in countries where it is prohibited. Company is advised to contact the embassy or trade office of the destination country prior to entry into that country.
C. Business Licenses & Permits: Each Party shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct that portion of its business relating to the exercise of its rights and the performance of its obligations under the Agreement.
A. Transfer of Title
i. Purchased: Title to any Equipment purchased by Company will transfer from ITC to Company upon our receipt of the full purchase price and any applicable taxes, fees, and freight charges for such Equipment. Until we receive such payment, (i) title to such Equipment will remain with ITC, (ii) Company hereby grants to ITC a purchase money security interest in such Equipment, and (iii) Company agrees to keep such Equipment free from any liens, claims, or encumbrances.
ii. Rented: ITC will retain title to all Equipment that Company rents from ITC. Company must ensure that all Equipment is clearly labeled as property of ITC at all times except for Equipment Company has purchased and paid for in full. To avoid doubt, under no circumstance or operation of law or equity will any Equipment not purchased and fully paid for by Company be considered property of any entity other than ITC. Company shall defend, indemnify, and hold ITC harmless from and against all claims, liabilities, and fines, including, without limitation, all costs and expenses (including, without limitation, attorney fees), arising out of or relating to the validity of ITC’s title to any Equipment not purchased and paid for in full by Company or incident to establishing such right to indemnification.
B. Risk of Loss
i. Purchased: Risk of loss for Equipment purchased or to be purchased by Company will transfer upon delivery to Company or Company’s shipping agent, whichever occurs first. Unless otherwise agreed in writing, all Equipment will be provided to Company “Ex Works” at an ITC facility or premises. If requested and agreed to in writing, we will ship all Equipment from ITC’s premises to Company-designated location(s), and all shipping costs will be the sole responsibility of Company. In no event will ITC have any liability in connection with any shipment, nor will the carrier be deemed to be an agent of ITC. Unless otherwise agreed in writing prior to shipping, Company shall accept partial shipments.
ii. Rented: When Company rents Equipment from ITC, risk of loss thereof will transfer upon delivery to Company or Company’s shipping agent, whichever occurs first. Company must keep the Equipment free and clear from all liens, security interests, and encumbrances and may not transfer the Agreement or the Equipment in whole or in part to any other party.
C. Returned Equipment
i. Process: Any Equipment returned by Company must have an ITC-issued returned merchandise authorization (“RMA”) number prominently displayed on the packaging and must be returned to the ITC facility as directed by ITC. An RMA number may be obtained by contacting Company’s respective ITC pre-designated sales representative or account manager. Equipment returned without an RMA number will be returned to Company at Company’s expense.
ii. Purchased: There will be no refunds for used Equipment returned to ITC. If Company returns unused Equipment to ITC in its original package, in its original condition, and it arrives at the applicable ITC facility within thirty (30) days of original delivery to Company, ITC will refund to Company eighty five percent (85%) of the purchase price, the remaining fifteen percent (15%) of the purchase price representing a restocking fee as liquidated damages and not as a penalty. Company will bear all shipment and insurance costs related to any such return shipment. Company will bear all risk of loss for any such returned Equipment until received and accepted by ITC.
iii. Rented: Company shall return, at its sole expense (including, without limitation, all shipment and insurance costs), all rented Equipment to the location(s) designated by ITC at the end of the rental term in good condition, normal wear and tear excepted. ITC may charge Company and Company will pay ITC for the fair market value of the Equipment, in our reasonable determination, if Company fails to deliver the Equipment in such condition to the designated ITC facility within thirty (30) days of the end of the rental term. If Company breaches any of the foregoing provisions regarding rental Equipment, we, or our designated agents, may enter Company’s premises where the Equipment is reasonably believed to be located and remove such Equipment without notice. Company shall immediately pay all remaining amounts due for both Equipment and Services. Company will bear all shipment and insurance costs related to such return shipment. In any case, Company will be responsible for ensuring that all Equipment owned by ITC is returned to an ITC-designated location upon termination of the applicable Service Order.
D. Company Obligations: Company is responsible for the security, protection, and care of all Equipment rented by Company from ITC. Company must insure such Equipment against loss by fire, theft, and any other casualty covered by standard fire and extended coverage insurance for the full then-current replacement value. Company shall provide verification of any insurance required under the Agreement in a form reasonably acceptable to ITC upon request. Company shall permit ITC to clearly mark all ITC-owned Equipment with labels or other material as ITC deems appropriate to identify ITC’s ownership and title to its Equipment. Company will not remove, reconfigure, modify, sell, assign or otherwise transfer Equipment without ITC’s prior written consent except for Equipment Company has purchased and paid for in full.
E. Nonconforming Equipment: Company shall inspect Equipment received under the Agreement within five business days of receipt (the “Inspection Period”) of the Equipment and either accept or, if Company believes any Equipment to be Nonconforming Goods, Company may reject that portion of the Equipment. Company will be deemed to have accepted the Equipment unless it notifies ITC in writing of any Nonconforming Goods during the Inspection Period and furnishes written evidence or other documentation as reasonably required by ITC. If Company notifies ITC of any Nonconforming Goods within the Inspection Period, ITC shall determine, in its sole discretion, whether such Equipment are Nonconforming Goods. If ITC determines that such Equipment are Nonconforming Goods, it shall either, in its sole discretion, replace the Nonconforming Goods with conforming Equipment or refund the Price for the Nonconforming Goods, together with all shipping expenses incurred by Company in connection therewith. Company shall ship, at ITC’s expense, all Nonconforming Goods to ITC’s specified facility. If ITC exercises its option to replace Nonconforming Goods, ITC shall, after receiving Company’s shipment of Nonconforming Goods, ship to Company, at ITC’s expense, the replaced Equipment to the applicable delivery point. Company acknowledges and agrees that the remedies set out in this section are Company’s exclusive remedy for the delivery of Nonconforming Goods.
9. Installation & Maintenance
A. Environment: Company will provide a proper and suitable environment (including adequate power and appropriate temperature control) for the Equipment, in accordance with ITC’s and the manufacturer’s specifications (and any failure to provide such proper and suitable environment will void any warranty on the Equipment, including the warranties set forth herein). To avoid doubt, providing such an environment includes, without limitation:
i. Providing the VSAT ADE mounting pedestal;
ii. Arranging for cranes to lift the ADE onto each Vessel (if installation is needed),;
iii. Providing and installing all interconnect cables on the Vessel;
iv. Providing UPS power in the equipment room in accordance with ITC operational requirements
v. Providing BDE rack space;
vi. Providing the onboard infrastructure including, without limitation, PBX, telephones, handsets, cables, and related equipment;
vii. Performing all boring, drilling, and filling (glanding) of openings;
viii. Providing an air conditioned area with power, lights, and secure work area for installation (to make sure technicians have a decent environment);
ix. Providing adequate environment and support for a two man technical crew to installations and testing;
x. Providing access badges and security and safety escorts for ITC personnel; and
xi. Providing all Vessel itineraries as far in advance as practicable, including revised itineraries.
B. Onsite Equipment Access: Company must provide the following to ITC, at Company’s expense: the proper environment (as ITC may specify), lightning protection, crane access (if necessary), electrical power, telecommunications connections, equipment space, supporting structures, lighting, inside wiring, unimpeded access to and egress from its premises necessary or appropriate to install, operate, repair, maintain, inspect, re-provision, disconnect, and remove any Equipment utilized in the provision of Services. Company shall comply with any detailed installation requirements specified by ITC or as may be generally incorporated by reference into these Terms & Conditions (together, the “Installation Guidelines”). These provisions must be made available to ITC in sufficient time to permit the installation, maintenance, or disconnection of any Equipment in accordance with the Service Activation Date. ITC’s obligations to perform installation, maintenance, or disconnection will be amended accordingly if Company fails to satisfy these conditions; such amendment will be effective even if unwritten, notwithstanding any requirement that amendments to the Agreement be written and signed by the Parties.
C. Connection to Third Party Equipment: Title to all equipment and facilities that ITC uses to provide the Network Services, other than such Equipment explicitly and fully purchased by Company, will remain with ITC. If Company connects Company’s own equipment or that supplied by a third party to ITC’s network, Company must provide ITC with specifications of such non-ITC-provided equipment and facilities upon request, and ensure that such equipment is compatible with and does not harm, impair, or interfere with the technical integrity of the Network Services, ITC’s network, ITC’s supplier network(s), or any other services or customers of ITC. Company will provide and pay for all equipment and services required to connect non-ITC-provided equipment to the Services and for the costs and expenses of repairing or troubleshooting any problems related to such connection of such Company or third-party provided equipment. Company is responsible for the compatibility of all such non-ITC-provided equipment with ITC’s network and it will be a material breach of the Agreement if such non-ITC-provided equipment fails to perform compatibly within thirty days of initial testing thereof.
D. Implementation Schedule: ITC and Company will agree on a mutually convenient for Implementation Schedule, which must include the Service Activation Date. In the event such Implementation Schedule is delayed, ITC and Company will agree upon a new Implementation Schedule. Company will adhere to the Installation Guidelines. In no event will ITC be liable for failure to meet the Service Activation Date when Company’s act or omission contributes to such failure. Company will reimburse ITC for all out-of-pocket expenses incurred by ITC for any delay in, or failure to achieve, any implementation in relation to any failure to meet the Service Activation Date arising out of or relating to Company’s act or omission. Company’s sole remedy for a failure by ITC to either provide Network Services by the Service Activation Date or to provide Network Services during the contracted term for such Network Services will be for Company to request an outage credit, to the extent the same may be available under the applicable Supplier Agreement or Terrestrial Contract, or as the Parties may mutually agree on a case-by-case basis.
E. Installation: Unless otherwise agreed in writing, installation services will be provided by ITC or its subcontractors on a time and materials basis at ITC’s then-current rates for labor, or at the rates set forth in the applicable Service Order.
F. Maintenance Windows: ITC may periodically be required to perform network maintenance, including but not limited to software/firmware upgrades, radio frequency equipment maintenance, teleport/hub upgrades, terrestrial interconnection upgrades, or other preventative maintenance, which may temporarily suspend service for Company while the maintenance is being performed. ITC reserves Saturday between the hours of 12:00AM and 2:00AM Coordinated Universal Time (UTC) as the standard pre-scheduled Maintenance Window. ITC will use reasonable efforts to notify Company in advance of the planned implementation of a Maintenance Window.
G. Field Maintenance: ITC will provide maintenance services in relation to the Network Services. On-site maintenance will be made available on a time and materials basis at ITC’s then-current rates for labor, or at the rates set forth in the applicable Service Order. Company agrees to comply with all reasonable instructions that ITC may give, from time to time, and to provide all necessary assistance to ITC in diagnosing any Network Service faults.
H. Transportation & Stand-by Time: Notwithstanding anything to the contrary in these Terms & Conditions, and regardless of whether related to any warranty in these Terms & Conditions, under all circumstances arising out of or related to Company’s or Company’s End Users’ use of the Network Services, Company is responsible for all expenses related to the transportation of field technicians and equipment to and from remote sites. Company will bear the cost of all offshore and overseas transportation expenses related to the provision of Network Services and all Stand-By Time incurred by ITC or its contractor personnel that is caused by or attributed to Company including, without limitation, where caused by delays to or untimely cancellation of service calls or wait-time for Company supplied transportation. Stand-By Time will be charged at ITC’s then-current rates for labor.
I. ITC may, in its sole discretion upon notice to Company, use alternate satellites to provide Service to Customer, provided that any such change of satellite does not adversely impact the quality of Service delivered to Company. Company shall promptly provide all assistance implementing such changes reasonably requested by ITC at ITC’s cost.
10. Use of Network Services
A. Acceptable Use: Company will use the Network Services in accordance with ITC’s Acceptable Use Policy, as well as all applicable U.S. and foreign rules, laws, and regulations. Company will be liable for all use or misuse of the Network Services hereunder (including use or misuse by End Users), irrespective of whether such use or misuse was authorized, fraudulent, or otherwise. Company will not, and will ensure that its End Users do not use the Network Services in an abusive or fraudulent manner, including, but not limited to the following:
i. Accessing or attempting to access Network Services by using any device not authorized by ITC or by tampering with or altering Equipment;
ii. Obtaining or attempting to obtain permission to use Network Services by providing false or misleading information;
iii. Obtaining Network Services without having the intent to pay charges incurred;
iv. Intentionally interfering with or causing disruption in the provision of Network Services to other ITC customers;
v. Using Network Services to further criminal activity, including, without limitation, to make obscene or illegal communications, to impersonate another person with fraudulent or malicious intent, or to call another person so frequently or at such times of day or in any other manner with the intended effect of annoying, threatening, or harassing such other persons; or
vi. Using Network Services in a manner that interferes unreasonably with the use of Network Services by one or more other ITC customers.
B. Liability: Company will be liable for the actions and inaction of every Person who uses the Network Services as if Company expressly authorized all such actions or inactions. Company is solely responsible for implementing security measures to restrict access to the Network Services, including, without limitation, firewalls, network security, and PBX. Company will be responsible for every such Person whether or not (i) Company has control of such person, (ii) such Person has acted beyond the scope of his or its employment or engagement, or (iii) accessed the Network Services by bypassing Company’s security measures. ITC will cooperate with government authorities and private parties who allege breaches. This cooperation includes, without limitation, responding to subpoenas. Company agrees to cooperate with ITC with any investigations and Company agrees to defend, indemnify, and hold ITC harmless from and against all claims, liabilities and fines, including, without limitation, all costs and expenses (including, without limitation, attorney fees) incident to such investigations, or incident to establishing the right to indemnification, arising out of or relating to use of the Network Services by Company or End Users of Company’s network.
A. Satellite Space Segment: Company understands and acknowledges that ITC does not own or operate satellite spacecraft that provide Satellite Space Segment and that ITC is a reseller of Satellite Space Segment purchased from Satellite Suppliers. ITC is not responsible or liable for any action, inaction, or failure of performance on the part of any Satellite Supplier. If any such action, inaction, or failure of performance by a Satellite Supplier renders Company unable to use the Service, ITC will use reasonable efforts to work with that Satellite Supplier to restore Company’s access to the Service. ITC has no obligation to procure alternate Satellite Space Segment in the event of any such action, inaction, or failure of performance by a Satellite Supplier. Satellite Space Segment is provided subject to the terms and conditions contained in agreements between ITC and the Satellite Suppliers, as specified in ITC’s Acceptable Use Policy and below. ITC reserves the right to update any such policy in response to any changes in such terms imposed by Satellite Suppliers, with such changes effective upon notice to Company, notwithstanding any language in the Agreement requiring that amendments thereto be executed by both Parties.
B. Supplier Availability: Satellite Space Segment may be temporarily unavailable or limited because of capacity limitations, network equipment failures, distress, Events of Force Majeure, or any other emergency pre-emption as may be required by ITC or a Satellite Supplier. Satellite Space Segment may also be temporarily interrupted or curtailed due to modifications, upgrades, repairs, or similar activities of the Satellite Supplier. ITC has no liability for malfunctions or other performance issues of any Satellite Supplier networks.
C. Supplier Agreement Requirements: ITC rents Satellite Space Segment through Supplier Agreements, which agreements contain certain terms and conditions and acceptable use policies that apply to both ITC and Company. ITC will inform Company of all such terms in writing, for example, in ITC’s Acceptable Use Policy. ITC reserves the right to update any such policy in response to any changes in such terms imposed by Satellite Suppliers, with such changes effective upon notice to Company, notwithstanding any language in the Agreement requiring that amendments thereto be executed by both Parties.
D. Improper Illumination: ITC will immediately notify Company if we detect or are informed of any Improper Illumination of any Service provided under the Agreement. Company will take immediate corrective action to stop the Improper Illumination including, without limitation, any action directed by ITC reasonably likely to reduce or eliminate such Improper Illumination. ITC may, in its sole discretion, temporarily suspend, without notice and with no liability to Company, any affected Services should Company be unable to rectify the Improper Illumination within four minutes from notification of the Improper Illumination to Company as set forth in this paragraph. Such affected Services will be suspended until Company demonstrates to our sole satisfaction that the Improper Illumination is rectified. Company will be charged and will pay any amount that we are required to pay to our Satellite Suppliers or other telecommunications service provider(s) under any other contract due to any Improper Illumination attributable to Company. ITC will timely inform Company in writing of any liability incurred as a result of such Improper Illumination. It is Company’s responsibility to provide ITC, on or before the Service Activation Date, with a telephone number(s) at which we can contact Company twenty-four hours per day, 365/366 days per year. In addition, ITC has the right, in its sole discretion, to take immediate action, including but not limited to suspending or terminating any affected Service(s), in order to protect our Services or interests.
E. Terrestrial Connections & Services: Company understands and acknowledges that ITC does not own or operate Terrestrial Connections & Services and that ITC is a reseller of Terrestrial Connections & Services purchased from Terrestrial Suppliers. Terrestrial Connections & Services are provided subject to certain terms and conditions contained in Terrestrial Contracts between ITC and the Terrestrial Suppliers applicable to ITC and Company, which are specified in ITC’s Acceptable Use Policy. ITC reserves the right to update any such policy in response to any changes in such terms imposed by Terrestrial Suppliers, with such changes effective upon notice to Company, notwithstanding any language in the Agreement requiring that amendments thereto be executed by both Parties. ITC makes no warranties or guarantees with respect to the availability of Terrestrial Services. ITC has no liability for any Terrestrial Supplier networks, facilities, or services. If any action, inaction, or failure of performance by a Terrestrial Supplier renders Company unable to use the Service, ITC will use reasonable efforts to work with that Terrestrial Supplier to restore Company’s access to the Service. ITC has no obligation to procure alternate Terrestrial Connections & Services in the event of any such action, inaction, or failure of performance by a Terrestrial Supplier.
F. No Control of Suppliers and Facilities: Company acknowledges and agrees that ITC has and will have no liability or responsibility for any action or inaction by any third-party Satellite Supplier, Terrestrial Supplier or Facility. Any service level parameters and related warranties, pricing, surcharges, outage credits, required commitments, termination liability, and other terms relating to the Facilities are those of the third-party provider or carrier of such Facilities, and not ITC.
G. No E-911 or Universal Emergency Telephone Number (UETN) Support: Company acknowledges that the Equipment and Services provided by ITC are not capable of and do not support “911” (U.S.), “112” (Europe), or “000” (Australia) emergency calls or any other emergency telephone support services (“UETN Services”). Location and call-back telephone number information is not supported and will NOT be forwarded to any emergency call center or public safety answering point. It is Company’s sole responsibility to provide its End Users with an emergency call or support service. Company agrees that ITC has no liability whatsoever to Company or any third party for emergency call or response services. UETN Services are offered as part of the VoIP service but subject to limitation. The Federal Communications Commission (“FCC”) requires all Voice over Internet Protocol (VoIP) service providers inform customers/subscribers of any differences between the UETN Services and E911 access capabilities available between the service as compared to traditional wireline non-VoIP telephone service. VoIP UETN Services provided by ITC’s VoIP providers are subject to the following limitations:
i. VoIP UETN Services and E911 service may not operate during a power outage.
ii. VoIP UETN Services and E911 service may not operate if your broadband or satellite connection is disrupted.
iii. VoIP UETN Services and E911 service calls may not complete or may be routed to emergency personnel who will not be able to assist if you disable, damage or move the equipment to a location other than the physical location/address you provided to ITC or the subcontractor when the service was initiated.
iv. Emergency personnel may not be able to identify your phone number in order to call back.
v. VoIP UETN Services and E911 service calls may be delayed or dropped due to network architecture.
vi. Buyer should maintain alternate means of contacting emergency services.
vii. IN NO EVENT WILL ITC, ITS PARENT COMPANY, OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS OR ANY OTHER THIRD-PARTY PROVIDER OR VENDOR WHO MAY FURNISH THE SERVICES BE LIABLE FOR ANY CLAIM, DAMAGE, OR LOSS WHATSOEVER ARISING FROM OR RELATING TO 911 OR OTHER UTEN SERVICES DIALING AND COMPANY HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION ARISING FROM OR RELATING TO 911 OR OTHER UTEN SERVICES DIALING.
viii. ITC DOES NOT HAVE ANY CONTROL OVER WHETHER, OR THE MANNER IN WHICH, 911 OR OTHER EMERGENCY SERVICE CALLS USING THE VOIP SERVICES ARE ANSWERED OR ADDRESSED BY ANY LOCAL EMERGENCY RESPONSE CENTER. ITC DISCLAIMS ALL RESPONSIBILITY FOR THE CONDUCT OF LOCAL EMERGENCY RESPONSE CENTERS AND THE NATIONAL EMERGENCY CALLING CENTER. ITC RELIES ON THIRD PARTIES TO ROUTE 911 AND E911 CALL TO LOCAL EMERGENCY RESPONSE CENTERS. ITC DISCLAIMS ANY AND ALL LIABILITY OR RESPONSIBILITY IN THE EVENT SUCH THIRD PARTY DATA USED TO ROUTE CALLS IS INCORRECT OR YIELDS AN ERRONEOUS RESULT.
12. Party Groups
A. ITC. The term “ITC Group” mean ITC, its Affiliates, and the officers, directors, employees, representatives, insurers, consultants, subcontractors, and agents of each of the foregoing.
B. Company Group. The term “Company Group” means Company, Company’s Affiliates, and the officers, directors, employees, representatives, insurers, consultants, subcontractors, and agents of each of the foregoing.
13. Limitation of Liability
A. NO CONSEQUENTIAL DAMAGES: None of ITC Group or any of its respective officers, directors, employees, representatives, insurers, or Affiliates will be liable on any basis whatsoever for any indirect, incidental, consequential, reliance, special, punitive, or exemplary damages (including, without limitation, loss of revenue or profit, loss arising from or attributable to failure to realize anticipated savings, or loss of production, equipment, or data), even if a Party knew or has been advised of the possibility or likelihood of such damages, arising out of, related to, or in connection with the provision or failure to provide the Network Services for any reason whatsoever and howsoever arising. ITC’s liability in contract, tort, or otherwise, including any liability for negligence, howsoever arising out of or in connection with the performance of ITC’s obligations under the Agreement will be limited to the remedies specified herein.
B. LIMITATION: EXCEPT FOR INDEMNITY OBLIGATIONS IN SECTION 14(A) OF THESE TERMS & CONDITIONS, THE TOTAL, AGGREGATE LIABILITY OF ITC GROUP TO COMPANY FOR ALL CLAIMS WHATSOEVER RELATED TO THE NETWORK SERVICES OR THESE TERMS AND CONDITIONS FOR DAMAGES TO COMPANY (OR TO ANY MEMBER OF COMPANY GROUP) FOR ANY CLAIMS WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, HOWSOEVER ARISING WILL BE LIMITED TO DAMAGES ACTUALLY PROVEN AS DIRECTLY ATTRIBUTABLE TO ITC, AND FURTHER LIMITED TO AN AMOUNT EQUAL TO THE LAST THREE MONTHS OF PAYMENTS MADE BY COMPANY TO ITC UNDER THESE TERMS AND CONDITIONS PRECEDING THE DATE OF ANY CLAIM MADE AGAINST ITC.
A. MUTUAL INDEMNITY: EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT, ITC AND COMPANY WILL PROTECT, DEFEND, INDEMNIFY AND HOLD EACH OTHER HARMLESS FROM ALL THIRD-PARTY CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, AND EXPENSES (INCLUDING, WITHOUT LIMITATION. REASONABLE ATTORNEY FEES) OF EVERY TYPE AND CHARACTER FOR PERSONAL INJURY, DEATH OR LOSS OF OR DAMAGE TO TANGIBLE PERSONAL PROPERTY, IN EACH CASE, RESULTING FROM THE INDEMNITOR’S NEGLIGENCE OR WILLFUL MISCONDUCT. WHERE SUCH THIRD PARTY’S PERSONAL INJURY, DEATH, OR LOSS OF OR DAMAGE TO PROPERTY RESULTS FROM THE JOINT NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTIES, THE INDEMNITOR’S DUTY OF INDEMNIFICATION WILL BE IN PROPORTION TO ITS ALLOCABLE SHARE OF SUCH JOINT NEGLIGENCE OR WILLFUL MISCONDUCT. IF EITHER PARTY IS HELD STRICTLY LIABLE UNDER ANY APPLICABLE LAW, THE OTHER PARTY’S DUTY OF INDEMNIFICATION WILL BE IN THE SAME PROPORTION THAT ITS NEGLIGENCE OR WILLFUL MISCONDUCT CONTRIBUTED TO THE THIRD PARTY’S PERSONAL INJURY, DEATH, OR LOSS OF OR DAMAGE TO PROPERTY. FOR THE AVOIDANCE OF DOUBT, WHERE ITC IS THE INDEMNITOR, THE INDEMNITEE IS COMPANY GROUP, AND WHERE COMPANY IS THE INDEMNITOR, THE INDEMNITEE IS ITC GROUP.
B. COMPANY INDEMNITY: COMPANY AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS EACH MEMBER OF THE ITC GROUP AND EACH OF THEIR RESPECTIVE SUPPLIERS FROM AND AGAINST ALL LIABILITY, CLAIMS, ACTIONS, LOSSES, DAMAGES (INCLUDING DAMAGE TO TANGIBLE PERSONAL PROPERTY), AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEY FEES) ARISING OUT OF OR RELATING TO (I) COMPANY’S USE OR MISUSE OF THE NETWORK SERVICES, (II) ANY CLAIMS OR ACTIONS FOR LIBEL, DEFAMATION, SLANDER, INVASION OF PRIVACY, PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT, OR THE VIOLATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS ARISING IN CONNECTION WITH THE USE OR MISUSE OF THE NETWORK SERVICES, (III) ANY CLAIM OR ACTION FOR PATENT INFRINGEMENT RESULTING FROM COMPANY GROUPS’S USE OF THE NETWORK SERVICES IN COMBINATION WITH ANY EQUIPMENT, HARDWARE, SOFTWARE, SYSTEMS, CABLING, FACILITIES, OR SERVICES NOT PROVIDED HEREUNDER BY ITC, (IV) ALL BREACHES OF SECTION 2 OF THESE TERMS & CONDITIONS, AND (V) ANY SECTION OF THE AGREEMENT IMPOSING AN INDEMNITY OBLGATION ON COMPANY.
C. INDEMNIFICATION PROCESS
i. To be entitled to indemnification for any loss or cost permitted under the Agreement (a “Claim”), the Party seeking to be indemnified (“Indemnitee”) must promptly (and in any event no later than ten days after Indemnitee first knew of the Claim) notify the indemnifying Party (“Indemnitor”) of that Claim and deliver to Indemnitor copies of all relevant information associated with that Claim, including (without limitation) legal pleadings with respect to the Claim, documents or other evidence substantiating that Claim, sworn statements of relevant persons describing the facts underlying such Claim, or any other information reasonably requested by Indemnitor. If Indemnitee fails to timely notify Indemnitor of a Claim or provide requested information, Indemnitor will be relieved of its indemnification obligations with respect to that Claim to the extent that Indemnitor was prejudiced by that failure. Except as expressly provided in the Agreement, Indemnitor has no obligation to indemnify Indemnitee for Claims caused negligently, recklessly, or intentionally by Indemnitee.
ii. Promptly after receiving notice of a Claim, Indemnitor shall retain to represent it in the Claim independent legal counsel reasonably acceptable to Indemnitee.
iii. Indemnitee may elect to participate in the defense of a Claim. Indemnitee may defend a Claim with counsel of its own choice and cost and without the Indemnitor participating if the Indemnitee notifies Indemnitor that it wishes to defend the Claim upon its initiation or by midnight at the end of the tenth day after Indemnitee notifies Indemnitor of the Claim. If representation of the Indemnitee and Indemnitor by the same counsel would, in the opinion of that counsel, constitute a conflict of interest, Indemnitor shall select and retain separate counsel reasonably acceptable to Indemnitee.
iv. Indemnitor shall pay any reasonable out-of-pocket expense incurred in defending a Claim or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements (“Expenses”) that Indemnitee incurs in connection with defense of the Claim before the Indemnitor assumes the defense of that Claim, except with respect to any period during which Indemnitee fails to timely notify Indemnitor of that Claim. Indemnitor will not be liable for any Expenses that Indemnitee incurs in connection with defense of a Claim after Indemnitor assumes the defense of that Claim, other than Expenses that Indemnitor incurs in employing counsel in accordance with this section.
v. After Indemnitor assumes the defense of a Claim, Indemnitor may investigate, contest, and pay the Claim in Indemnitor’s discretion, including use of arbitration to determine issues of fact. The rules and location of any such arbitration will be agreed by Indemnitor, Indemnitee, and the other party to such arbitration. Indemnitor may not settle a Claim or admit liability or fault on behalf of Indemnitee without Indemnitee’s prior written consent to such settlement or admission. Any settlement Indemnitor reaches on any Claim must provide that the claimant’s sole relief is monetary damages paid in full by Indemnitor and requires that the claimant release Indemnitee from all liability alleged in the Claim.
15. Governing Law
A. Company’s Base: For the purposes of this section, Company is based in the country of its principle place of business. To avoid doubt, Company’s jurisdiction of formation (e.g., country of incorporation) or registered address for service of process do not determine where Company is based for the purposes of this section.
B. Americas. If Company is based in North America, South America, or Central America and Mexico, all claims (contract, tort, or otherwise) arising out of or relating to any Agreements will be governed by and construed in accordance with the laws of the state of New York, excluding any choice of law rule thereof that would direct the application of the laws of another jurisdiction. Company agrees that state and federal courts in New York will have exclusive jurisdiction in relation to any proceedings arising out of or in relation to any Agreement initiated by Company. ITC will have the right to initiate any proceedings arising out of or in relation to any Agreement in any court having jurisdiction.
C. Europe Middle-East Africa. If Company is based in Europe, Middle East, or Africa, all claims (contract, tort, or otherwise) arising out of or relating to any Agreements will be governed by the and construed in accordance in accordance with the laws of England and Wales, excluding any choice of law rule thereof that would direct the application of the laws of another jurisdiction. Company agrees that English courts will have exclusive jurisdiction in relation to any proceedings arising out of or in relation to any Agreement initiated by Company. ITC will have the right to initiate any proceedings arising out of or in relation to any Agreement in any court having jurisdiction.
D. Australia Pacific. If Company is based in Australia, New Zealand, or elsewhere in the Asia Pacific region, all claims (contract, tort, or otherwise) arising out of or relating to any Agreements will be governed by the and construed in accordance in accordance with the laws of Western Australia, excluding any choice of law rule thereof that would direct the application of the laws of another jurisdiction. Company agrees that Western Australian courts will have exclusive jurisdiction in relation to any proceedings arising out of or in relation to any Agreement initiated by Company. ITC will have the right to initiate any proceedings arising out of or in relation to any Agreement in any court having jurisdiction.
E. Alternate Dispute Resolution: In the event of any dispute, claim, question, or disagreement arising from or relating to any Agreement or the breach thereof, the Parties shall use their best efforts to settle the dispute, claim, question, or disagreement through a meeting of executives of each Party, without legal counsel present. Such meeting must occur within thirty days of receipt of notice of such dispute, claim, question, or disagreement. Such meeting may occur via telephone if both Parties agree. The Parties shall memorialize the results of such meeting in writing.
A. Equipment Warranty. ITC shall use its best efforts to make all warranties provided by any applicable Equipment manufacturers available to Company. For any repairs not covered by such warranty, ITC will provide a quotation for such repairs and if Company accepts and authorizes the work, the repairs will be performed at Company’s expense on a time and materials basis. In any event, Company will bear the transportation cost of returning any Equipment to an ITC-designated repair facility and of returning the Equipment to Company’s premises following any such repair. The foregoing is Company’s sole remedy in the event of a warranty claim. Per section 16(C) of these Terms & Conditions, ITC makes no warranties for Equipment or Services provided to Company. If Company requires an ITC technician to travel to Company’s location to perform repair services, Company is responsible for all costs associated with the travel including, but not limited to, transportation costs, living expenses, etc. We will provide Company a written estimate of such costs upon request.
B. Warranty Exclusions. The foregoing warranty does not extend to Equipment that has been altered in any way, installed by a third party not approved in writing in advance by ITC, disassembled, or that fails or is damaged after delivery due to accident, act of God, shipping or handling, or due to storage, operation, use, or maintenance in a manner or environment that does not conform to the Equipment manufacturer’s instructions or specifications provided by ITC at the time of delivery to Company.
C. Disclaimer: EXCEPT AS SET FORTH IN THESE TERMS AND CONDITIONS, ITC EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AS TO ANY ASPECTS OF THE NETWORK SERVICES RENDERED OR EQUIPMENT PROVIDED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT. ITC DOES NOT WARRANT THAT THE EQUIPMENT OR SERVICES WILL MEET COMPANY’S REQUIREMENTS OR THAT THE OPERATION OF THE NETWORK SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. ANY WARRANTIES GRANTED HEREIN ARE PROVIDED SOLELY TO COMPANY AND ITC MAKES NO WARRANTY OF ANY KIND TO COMPANY’S USERS OR ANY OTHER THIRD PARTIES.
17. Force Majeure: ITC will not be liable for any failure of performance hereunder due to any Event of Force Majeure. To the extent all such occurrences are beyond the reasonable control of ITC, delay in performance by subcontractors to the extent such delay is beyond our reasonable control, and other delays incurred for reasons beyond our reasonable control, which, by the exercise of reasonable diligence, are unable to be prevented or avoided. ITC’s obligation to perform its obligations hereunder will be suspended for the duration of a period of Force Majeure and will resume as soon as reasonably possible upon the cessation of the event of Force Majeure. If an Event of Force Majeure prevents Company from using the Service (for example, loss of a necessary license through no fault of either Party) for at least ninety consecutive days, ITC may terminate the Agreement upon ten days written notice without any liability to Company.
18. Independent Service Provider. These Terms & Conditions, nor any document that references them, do not create any partnership, joint venture, agency or employee/employer relationship of any kind between ITC and Company. ITC is an independent service provider with respect to performance under the Agreement; all persons employed by each Party are, and will remain the employees and agents of that Party and are not, and will not become, the employees or agents of the other Party. Both Parties expressly understand and agree that neither Party’s employees may participate in or receive any payment or benefits from the other Party.
19. Intellectual Property. Other than as specifically set forth in the Agreement, no licenses or any rights of any kind under any patent, copyright and rights to create derivative works, trademark, trade secret, service mark, mask works, or other form of intellectual property are granted by either Party or are to be implied by these Terms & Conditions or arise by estoppel.
20. Notices: All notices, requests, demands and other communications under the Agreement will be effective upon delivery to the addresses specified in the applicable Control Agreement or Service Order. Such notices will be in writing and will be sent by email, facsimile, or nationally recognized overnight courier or delivered in person.
21. Existence, Power, and Authority: Each of the Parties represents and warrants to the other that it is (i) duly organized and in good standing, (ii) free to enter into and fully perform the Agreement, and (iii) that there are no restrictions or impediments on its ability or authority to perform fully its obligations under the Agreement.
22. Amendments: Except where expressly specified otherwise (for example, changes to the Acceptable Use Policy), all agreements between the Parties that purport to amend, modify, supplement, or augment the Agreement will only be effective if in writing and executed by an authorized representative of each of Company and ITC.
23. Assignment: Company may not assign any of Company’s rights or obligations under the Agreement without the prior written consent of ITC, which will not be unreasonably withheld. Nothing herein will prevent ITC, without Company’s consent, from (a) assigning its right to receive payment hereunder to a third party, (b) assigning its rights and obligations under the Agreement to a corporation, partnership, or other business enterprise in which we have, directly or indirectly, an ownership interest, including, without limitation, all ITC Affiliates, or (c) assigning its rights to a successor in the event of a merger, acquisition or consolidation, or to a purchase of all (or substantially all) of ITC’s assets. The Agreement will inure to the benefit of and will be binding on Company’s and ITC’s respective successors and permitted assigns.
24. Waiver: None of the conditions or provisions of the Agreement will be held to have been waived by any act or knowledge on the part of either Party except by an instrument in writing signed by a duly authorized officer or representative of such Party. Further, the waiver by either Party of any right hereunder or the failure to enforce at any time any of the provisions of the Agreement, or any rights with respect thereto, will not be deemed to be a waiver of any other rights hereunder or any breach or failure of performance of the other Party nor will it be deemed a continuing waiver.
25. Attorney Fees: If any action at law or in equity is necessary to enforce or interpret the terms of the Agreement, the prevailing Party will be entitled to reasonable attorney fees, costs, and necessary disbursements in addition to any other relief to which such Party may be entitled.
26. Severability: If any provision of the Agreement is declared invalid, illegal, or unenforceable by a court or regulatory agency of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired thereby. In the event that any such provision will be declared invalid, illegal, or unenforceable due to its scope, breadth or duration, then it will be modified to the scope, breadth or duration permitted by law and will continue to be fully enforceable as so modified.
27. Survivability: All provisions of these Terms & Conditions that would naturally survive the expiration or termination of the Agreement will so survive, including, without limitation, the Articles entitled “Purchase Equipment,” “Rental Equipment,” “Network Services,” “Payment Terms,” “Indemnity & Limitation of Liability,” “End-of-Term Options and Termination of Services,” “Confidentiality,” and “Governing Law.”
28. Effective Period: ITC reserves the right to update or modify these Terms & Conditions and any of its policies (including, without limitation, ITC’s Acceptable Use Policy), at any time, effective upon notice to Company. These Terms & Conditions are effective as of the Effective Date on page one, and will remain in effect unless modified, revoked, or terminated pursuant to the Agreement.
29. Order of Precedence: To the extent of any conflicts between the terms of documents pertaining to the Agreement, such documents will be interpreted in the following descending order of priority, except to the extent that the inferior term expressly overrules or modifies the superior document: (a) ITC’s Acceptable Use Policy; (b) the Master Service Agreement (Communications) and the Reseller Agreement (Communications) equally (as limited by their respective integration clauses); (c) Service Orders; (d) the ITC Terms & Conditions (Communications); and (e) any other documents executed by the Parties relating to the Agreement.
30. Headings: The headings of the sections and subsections of the Agreement are for convenience and will not modify, define, limit, or expand the express provisions of the Agreement.