- DEFINITIONS. Unless otherwise defined in Section 27 below, the capitalized terms shall be defined in the context in which they are used.
- SCOPE OF SERVICES. The terms and conditions listed herein are part of, and incorporated by reference into one or more Service Orders entered into by Ingenious Technology, LLC and the Customer from time to time (each a “Service Order”, and collectively the “Service Agreement”). Ingenious Technology, LLC agrees to provide the services (“Services/Service”) as described in the applicable Service Agreement(s) [Contract(s)].
- LICENSE. Subject to the terms and conditions of the Service Agreement, Ingenious Technology, LLC grants to Customer a limited, non- transferable, non-exclusive license, without the right to sublicense, to access and use the Services provided by Ingenious Technology, LLC in their intended manner in accordance with the Documentation provided to Customer, solely to support Customer’s normal course of business. Customer shall not: (i) use the Services in a resale capacity, (ii) modify, decompile, reverse engineer, disassemble, attempt to discover the source code of, or create derivative works based on, any of the Services or any part thereof, including any Ingenious Technology, LLC Equipment provided to Customer, or (iii) disable or circumvent any access control or related device, process or procedure established with respect to the Services or any part thereof. Upon expiration or termination of the Service Agreement for any reason, Customer’s license to use the Services shall immediately terminate, and Customer shall cease all use of the Services.
- ORDERS FOR SERVICES. Orders will only be accepted by Ingenious Technology, LLC if submitted by an employee or authorized agent of Ingenious Technology, LLC on behalf of a potential or existing customer in a form prescribed by Ingenious Technology, LLC. Ingenious Technology, LLC has no obligation to consider providing or provisioning services for any potential or existing customer and may reject at its sole discretion, any potential order or request for service. Any changes made by Ingenious Technology, LLC to a Service Order will be submitted to Customer for acceptance, prior to the Service Order being processed and/or acted upon by Ingenious Technology, LLC. All Service Orders are subject to acceptance by Ingenious Technology, LLC and may be rejected at the sole discretion of Ingenious Technology, LLC and any services provided by Ingenious Technology, LLC are subject review from time to time by Ingenious Technology, LLC for suitability and continuation of service by Ingenious Technology, LLC. A customer purchase order or similar document will not be considered as part of any or having any bearing on any Service Order or as a service request submitted to Ingenious Technology, LLC by or on behalf of any potential customer or additional services for an existing customer. Such document(s) shall be solely for Customer’s use and convenience.
- PAYMENTS. Customer agrees to pay all amounts due, including any late payment costs, as are specified in each Service Order, as applicable. If any authority imposes a regulatory surcharge, duty, tax or similar amount (other than that based on Ingenious Technology, LLC’s net income), Customer agrees to pay, or to promptly reimburse Ingenious Technology, LLC for, all such amounts. Payments shall be made in the manner, and on the dates, set out in each Service Agreement. Late payments are subject to a late payment charge, which is the lower of: (a) 1.5% per month, or (b) the maximum legal rate. If any unpaid amounts are referred to collection, Customer shall reimburse Ingenious Technology, LLC for all costs and expenses of collection, including all reasonable administrative and legal costs incurred. Therefore. Ingenious Technology, LLC reserves the right to suspend any or all services until past due accounts are paid in full. Non-Recurring Costs (NRC), Monthly Recurring (MRC) and Variable Service Costs (VSC) are charged separately
- Non-Recurring Cost (NRC) shall be due and payable by pre-approved company check, credit card or EFT/ACH draft from an acceptable account per the payment terms agreed to on each signed Service Order.
- Monthly Recurring Costs (MRC) for service(s) are due and payable in advance. On the day any service is activated, a prorated portion of the MRC is due and will be 1/30th of the MRC per day beginning on the day following the Service Activation Date as defined in paragraph 27 below through the last day of the current month. Beginning with the first full month of service, each MRC amount shall be due on the first day of each month. Customer shall pay all MRC amounts due by pre-authorizing automatic debits to a credit card or an EFT/ACH draft from a business checking account in a manner prescribed by Ingenious Technology LLC.
- Variable Service Costs (VSC) are charged in arrears for additional services or usage such as, but not limited to Outbound Local, Long Distance and International calls and Inbound Toll Free calls, Directory and other services according to Ingenious Technology, LLC’s current rate(s). Rates for VSC are subject to change with thirty (30) day prior written notice to the customer. Variable Service Costs (VSC) shall be due on the first of the month following the month in which they are incurred.
- TERM. The Term shall commence on the first day of the month following the month in which services are activated at the Customer’s premises and shall continue from that date for the duration of time specified on the Initial Service Order/Agreement/Contract, or until earlier termination in accordance with Section 7 below. Subsequent Service Orders/Agreements/Contracts for each customer/customer site shall be co-terminus with the Initial or Current Service Order/Agreement for the specified Customer or Customer Site, unless otherwise detailed in each Service Order. After the Initial Service Order Term for each Customer Site Ingenious Technology LLC shall continue providing service to that customer/customer site on a Month-to-Month basis at the same rates agreed to in the Initial Service Order or Subsequent Service Order(s) and section 5 above, by Ingenious Technology, LLC and the Customer, unless either party provides the other with written notice of intent to terminate services in accordance with Section 7.
- TERMINATION OF A SERVICE AGREEMENT.
- Termination During the Initial Service Term.
(1). Customer may only terminate the Service Agreement during the Initial Service Term, in its entirety upon thirty (30) days prior written notice to Ingenious Technology, LLC, if Ingenious Technology, LLC materially breaches the terms of a Service Agreement and does not cure such breach within thirty (30) days following receipt of written notice specifying the breach, in which case the Service Agreement shall terminate on the day following thirty (30) days from the date of such written notice.
(2) Ingenious Technology, LLC may terminate the Service Agreement during the Initial Service Term, in its entirety upon thirty (30) days prior written notice to Customer if Customer materially breaches the terms of a Service Agreement and does not cure such breach within thirty (30) days following receipt of written notice specifying the breach, in which case the Service Agreement shall terminate on the day following thirty (30) days from the date of such written notice. Unless, however, the Customer (i) fails to comply with the Acceptable Use Policy (the “AUP”) or (ii) fails to make payment in accordance with Section 4 within five (5) days following Customer’s receipt of written notice of such non-payment, then Ingenious Technology, LLC, in its sole discretion, may terminate the Service Agreement immediately, in its entirety without further notice to Customer; and further provided, that, in lieu of any termination as provided above in this Section 6, Ingenious Technology, LLC may, in its sole discretion, elect instead to take remedial measures such as suspending or otherwise restricting Customer’s access to all of the Services provided by Ingenious Technology, LLC for any period of time or terminating only those services that are the related to the breach, provided that such suspension, restriction or Service termination shall not prevent Ingenious Technology, LLC from subsequently terminating the entire Service Agreement as a result of such breach. If customer terminates the Service Agreement without cause prior to the completion of the Initial Service Term, all amounts associated with the remainder of the Initial Service Term, including those which would normally be due during the remainder of the Initial Service Term will be due immediately, including all the cost(s) of recovery of all equipment provided by Ingenious Technology LLC and reasonable legal costs incurred by Ingenious Technology LLC in recovering such equipment and/or amounts.
- Termination After the Initial Service Term.
(1). Customer may terminate the Service Agreement after the Initial Service Term, in its entirety upon thirty (30) days prior written notice to Ingenious Technology, LLC if Ingenious Technology, LLC for any reason deemed necessary, in which case the Service Agreement shall terminate on the day following the later: (a) the day service termination is requested in the written termination notice from the customer (b) or if applicable, the day service is actually transferred (ported) to another service provider or carrier.
(2) Ingenious Technology, LLC may terminate the Service Agreement after the Initial Service Term, in its entirety upon thirty (30) days’ prior written notice to Customer if Customer for any reason deemed necessary by Ingenious Technology, LLC, in which case the Service Agreement shall terminate on the day indicated in the service termination notice from Ingenious Technology, LLC.
(a) If Customer (i) fails to comply with the Acceptable Use Policy (the “AUP”) or (ii) fails to make payment in accordance with Section 5 within five (5) days following Customer’s receipt of written notice of such non-payment, then Ingenious Technology, LLC, in its sole discretion, may terminate the Service Agreement in its entirety without further notice to Customer; and further provided, that, in lieu of any termination as provided above in this Section 6, Ingenious Technology, LLC may, in its sole discretion, elect instead to take remedial measures such as suspending or otherwise restricting Customer’s access to all of the Services provided by Ingenious Technology, LLC for any period of time or terminating only those Service Orders that are the subject of the breach, provided that such suspension, restriction or Service termination shall not prevent Ingenious Technology, LLC from subsequently terminating the Service Agreement as a result of such breach.
Upon any termination of the Service Agreement:
(1.) All outstanding Service Orders, Agreements or Contracts shall automatically and immediately terminate, (a) Customer shall promptly pay all amounts accrued (including applicable administrative or legal amounts) or otherwise owed to Ingenious Technology, LLC.
(2.) Customer shall cease all use of Ingenious Technology, LLC Services, Equipment and return all equipment requested by Ingenious Technology, LLC in the applicable written terminate notice.
(3.) Ingenious Technology, LLC may, at its discretion, remotely disable equipment or components of the Services and may cancel all telephone lines, numbers and associated routing associated with the service covered under any and all affected Service Orders, Agreements or Contracts.
(4.) In the event of any termination by Ingenious Technology, LLC for Customer’s breach, during the Initial Service Term, customer hereby agrees and acknowledges that, notwithstanding the termination of services, customer shall be obligated to pay the Monthly Service Costs set forth in each Service Order, Agreement or Contract for the duration of the Service Period(s) applicable to such Service Order(s) Agreement(s) or Contracts(s), unless Customer shall cure such breach within thirty (30) days following such termination. Sections 1, 4, 6-9, 11-16, and 18-25 shall survive any termination or expiration of the Service Agreement.
- OWNERSHIP. As between Ingenious Technology, LLC and the Customer, Ingenious Technology LLC at all times retains and reserves physical and monetary interests in the services and all equipment provided by Ingenious Technology, LLC and located at the customer’s premises or in the possession of Customer, including all copyrights and other intellectual property rights therein or thereto except as otherwise expressly provided. Customer agrees that neither Customer nor any third party (“Third Party”) shall obtain or have any express or implied rights in or to any part of the Services or the Equipment. All rights not expressly granted are reserved by Ingenious Technology, LLC. Customer may not (i) attempt to sell, change or encumber the Services or Equipment or (ii) add to, modify, or interfere with the Services or Equipment, or allow any Third Party (other than someone authorized by Ingenious Technology, LLC) to do so. Customer shall take such action (including, but not limited to, the execution, acknowledgment, delivery and assistance in preparation of documents or the giving of testimony) as may be requested by Ingenious Technology, LLC to evidence, confirm and put third parties on notice of Ingenious Technology, LLC’s interest in the Services and Equipment, including without limitation, the filing of financing statements under the Uniform Commercial Code. Customer hereby agrees and acknowledges that, upon termination of Services, Ingenious Technology, LLC shall be granted access to the customer property, premises and room(s) or space(s) where any Ingenious Technology, LLC equipment is located within five (5) business days following the termination of the Service Agreement. Additionally, Customer will return or make available for removal the Equipment, in the same condition as originally installed (ordinary wear and tear excepted), or Customer will pay for the restoration of the Equipment.
- SETUP AND PROVISIONING OF EQUIPMENT.
(A) Any Equipment installed on Customer premises in connection with the Services will be delivered, installed and maintained by Ingenious Technology, LLC.. Customer will be responsible for preparing its site for installation, for providing acceptable space, foundations, heating and cooling, electrical power, and for affording Ingenious Technology, LLC or its agents, access to the premises for installation and maintenance.
(B) The Services shall be deemed accepted unless the Customer provides written notification to Ingenious Technology, LLC within seven (7) days following the Service Activation Date. Upon notification, Ingenious Technology, LLC may in its sole discretion immediately terminate such Services and remove the Equipment relating to such Services. Further, upon any such termination, Ingenious Technology, LLC will return to Customer all Costs paid by Customer at the signing of the Service Order and any monthly Service charges paid to Ingenious Technology, LLC prior to such termination, provided, however, that Ingenious Technology, LLC may offset from all such return payments the total amount of Ingenious Technology, LLC’s expenses incurred since inception in connection with the installation and provisioning of the terminated Services.
(C) Customer will be liable for the costs of repair or replacement of the Equipment if damaged or lost due to fire, flood or other natural occurrence, theft, vandalism, negligence, intentional or unintentional acts, unauthorized acts or other causes within the reasonable control of Customer, its owners, contractors, agents, associates or employees.
- CONFIDENTIALITY. Ingenious Technology, LLC and Customer each agree to use reasonable efforts to maintain the other’s Confidential Information in confidence and to not use or disclosure any portion of the other Party’s Confidential Information to Third Parties, except as reasonably necessary to perform their duties under this Service Agreement and as expressly authorized in this Service Agreement. Ingenious Technology, LLC and Customer agree that, upon termination of the Service Agreement, each will return any Confidential Information received from the other party. The Confidential Information shall remain the sole property of the disclosing party, and no license is granted to the recipient under any intellectual property rights or other proprietary rights by the disclosure of any Confidential Information, nor is any warranty made as to such information.
- REMOTE SYSTEM MONITORING. Customer acknowledges and agrees that Ingenious Technology, LLC will remotely monitor any and all Ingenious Technology, LLC Equipment and Service and any other systems and software used to provide Services in order to (i) maintain the quality of the services provided. (ii) monitor and generate call volume and usage statistics, and (iii) ensure Customer’s compliance with the AUP.
- WARRANTIES. Customer warrants and covenants that: (a) it has obtained all authorization(s), consents, and permissions necessary to perform its duties and to satisfy its obligations under the Service Agreement fully, consistent with applicable laws, (b) this Service Agreement will constitute valid and binding obligations of Customer, enforceable against it in accordance with its terms, and (c) it shall comply with the Documentation, the policies set forth in the AUP, and the other terms and conditions of the Service Agreement. Ingenious Technology, LLC warrants that the Services will be performed with reasonable skill and care in a professional and workmanlike manner and that it will use reasonable efforts to restore services in the event of failure.
- SECTION. 12 ABOVE REPLACES AND IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED, EXPRESSED OR OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. INGENIOUS TECHNOLOGY, LLC DOES NOT WARRANT ANY PARTICULAR RESULTS THAT MAY BE OBTAINED BY THE USE OF THE SERVICES OR THAT THE SERVICES OR ASSOCIATED SYSTEMS AND EQUIPMENT WILL OPERATE IN THE MANNER EXPECTED BY THE CUSTOMER, IN AN ERROR-FREE OR UNINTERRUPTED MANNER, OR IN COMBINATION WITH THIRD PARTY PRODUCTS.
While Ingenious Technology, LLC may implement certain agreed upon security measures for Customer, Ingenious Technology, LLC does not warrant or guaranty secure operation of the Services or of any systems, or that it will be able to prevent service disruptions or unauthorized access.
- REQUIRED NOTIFICATION REGARDING E911 SERVICE. The Federal Communications Commission (FCC) requires Internet telephone service providers to inform all subscribers that, under certain circumstances, when 911 is dialed from a phone connected to an Internet phone service; Emergency Services may not be accessible or information provided to Emergency Services may be limited. Further, you are hereby advised that the E911 service provided by Ingenious Technology, LLC (1) will not function with the loss of local electrical power; (2) will not function if the Internet connection to which the Ingenious Technology, LLC service is connected is not fully operational; (3) may not transmit the correct physical address for any E911 call if you provided an incorrect physical address to Ingenious Technology,LLC ,or the phone that an emergency call is made from has been moved from where it was originally activated by Ingenious Technology, LLC or due to delays in recording or updating the physical address information into the E911 database; (4) will not function or may transmit incorrect physical location information if the phone equipment is at a remote location and such location has not been reported to Ingenious Technology, LLC as may be the case when subscribing to Ingenious Technology, LLC’s remote phone service or mobile device application services; (5) may not function if the phone equipment is improperly configured based on any of the conditions above; 6) may not be able to be received and/or acted upon by an emergency call center due to technical issues; (7) may be affected by other factors, such as network congestion or the quality of the Internet connection or general conditions on the Internet. Your signature on any Ingenious Technology, LLC Service Order serves as your acknowledgement that Ingenious Technology, LLC has advised you of these potential Emergency Service (911) limitations as required by the FCC. Additionally, you acknowledge and agree to hold harmless Ingenious Technology, LLC, its owners, employees, contractors or agents for any injury or death to persons or animals, damage or vandalism to property , loss of income, profits (actual or claimed) or any other loss(s) that may arise from a lack of availability or proper reporting of an emergency call attempted using the Ingenious Technology, LLC Network.
- PATENTS AND COPYRIGHTS. If an unaffiliated Third Party claims that any of the Services or Equipment infringes on that party’s U.S. copyright or patent, Ingenious Technology, LLC will, at its expense, defend Customer against that claim and pay all costs, losses, damages, and attorneys’ Costs that a court finally awards, and all associated settlements. If such a claim is made or appears likely to be made, Customer agrees to permit Ingenious Technology, LLC to enable Customer to continue to use the affected Services or Equipment, or to modify them to make them non- infringing, or to replace them with another service that is substantially a functional equivalent. If Ingenious Technology, LLC determines that none of these options is reasonably available, then Ingenious Technology, LLC may immediately terminate the Service Agreement in whole or with respect to the specific affected Services or Equipment and no further payment obligations shall be due Ingenious Technology, LLC or from Customer. THIS IS INGENIOUS TECHNOLOGY, LLC’S ENTIRE OBLIGATION AND LIABILITY REGARDING INFRINGEMENT OR CLAIMS OF INFRINGEMENT. Notwithstanding the foregoing, Ingenious Technology, LLC will have no responsibility to provide (a) any additional or replacement Services or Equipment after Ingenious Technology, LLC has notified Customer to discontinue use, or (b) provide alteration modification of the Services or Equipment to continue the agreed upon service(s).
- CUSTOMER INDEMNITY. Customer will, at its expense, defend Ingenious Technology, LLC against all claims by Third Parties arising from or related to the customer’s use or misuse of the Services or Equipment, and Customer shall pay costs, losses, damages, and reasonable administrative and legal costs that a court finally awards, and all associated settlements.
- INDEMNIFICATION PROCEDURE. The indemnification obligations under Sections 13 thru 16 are conditioned on the indemnifying Party receiving (i) prompt written notice of the claim, (ii) the necessary assistance, information and authority to defend the claim and perform its obligations, and (iii) control of the defense and settlement of such claim and all associated negotiations. No indemnifying Party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified Party is or could have been a party and indemnity was or could have been sought under Sections 13 or 14 by such indemnified Party, unless such settlement, compromise or consent includes an unconditional release of such indemnified Party from all liability on claims that are the subject matter of such action, suit or proceeding.
- LIMITATION OF LIABILITY. In no event will Ingenious Technology, LLC’s total, aggregate liability arising from or related to the Service Agreement (including for negligence, strict liability, breach of contract, misrepresentation, and other contract or tort claims), exceed the lesser of (a) the amount of direct damages actually incurred by Customer or (b) the amount of Service Costs paid to Ingenious Technology, LLC for the specific Service under which the damages arose during the six (6) months immediately preceding the earliest event giving rise to the damages. UNDER NO CIRCUMSTANCES SHALL INGENIOUS TECHNOLOGY, LLC, ITS OWNERS, EMPLOYEES, CONTRACTOR, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY OF THE FOLLOWING: (a) THIRD PARTY CLAIMS OTHER THAN THOSE IDENTIFIED IN SECTION 12, (b) LOSS OR DAMAGE TO ANY RECORDS, DATA OR VOICE, (c) ANY DAMAGES CAUSED BY DELAY IN DELIVERY, INSTALLATION, OR SERVICES HEREUNDER, (d) ANY DELAY, LOSS, DAMAGE OR SERVICE FAILURE ATTRIBUTABLE TO ANY SERVICE, PRODUCT OR ACTIONS OF ANY PERSON OTHER THAN INGENIOUS TECHNOLOGY, LLC, ITS EMPLOYEES AND AGENTS, INCLUDING BUT NOT LIMITED TO DELAY, LOSS, DAMAGE OR SERVICE FAILURE ATTRIBUTABLE TO NETWORK CONDITIONS, COMPUTER VIRUSES, WORMS, SABOTAGE, “DENIAL OF SERVICE” ATTACKS, DNS/DID SPOOFING ATTACKS AND/OR OTHER ATTACKS OF A SIMILAR NATURE, OR (e) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR COVER DAMAGES (INCLUDING LOST PROFITS AND LOST SAVINGS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- ADDITIONAL SERVICES. All requests for additional or changed services shall be submitted to Ingenious Technology, LLC in writing. If applicable, Ingenious Technology, LLC and the Customer will use reasonable efforts to negotiate a new Service Order or written amendment to this Agreement for such changed or additional Services. Any such new Service Order or amendment shall be effective only when mutually executed; Ingenious Technology, LLC shall have no obligations in the absence of a mutually executed amendment or new Service Order. All changed and additional Services shall be charged at Ingenious Technology, LLC’s then-current rates.
- COMPLIANCE WITH LAWS. The Services are provided solely for lawful purposes and use. Without limiting the other terms of this Agreement, Customer shall be solely responsible for, and agrees to comply with, all laws, statutes, ordinances and/or regulations (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, false advertising, privacy and data protection, and publicity) (collectively, “Laws”) applicable to Customer’s business and its use of the Services. The Customer agrees that Ingenious Technology, LLC may in its sole discretion make changes to any of the Services from time to time as may be reasonably necessary or appropriate for Ingenious Technology, LLC to comply with applicable Laws or regulations. The Customer further agrees that if a change in applicable Laws makes the continued performance of the Service Agreement (or any part thereof), in Ingenious Technology, LLC’s sole reasonable discretion, unduly burdensome or unlawful, Ingenious Technology, LLC may at any time, terminate the Service Agreement in whole or in part.
- COMPLETE AGREEMENT. The Service Order, including the terms and conditions listed herein, and the Acceptable Use Policy (AUP) are collectively the complete agreement between Ingenious Technology, LLC and the Customer regarding its subject matter, superseding any prior oral or written communications. Amendments or changes to this Agreement must be in mutually executed writings to be effective.
- INDEPENDENT CONTRACTORS. Both, Ingenious Technology, LLC and the Customer are independent contractors for all purposes under this Agreement. Neither Party has the authority to bind the other to or incur any obligation on behalf of the other, or to represent itself as the other’s agent, or in any way that might result in confusion as to the fact that both Ingenious Technology, LLC and the Customer are separate, distinct legal entities.
- GOVERNING LAW; SEVERABILITY. The Service Agreement shall be governed in all respects by the laws of the State of New York, County of Erie, without regard to choice-of-law rules or principles. Any dispute arising out of or related to the Service Agreement shall be resolved only in the state or federal courts having jurisdiction in the Town of Tonawanda, New York. If any provision is held to be illegal or unenforceable for any reason, then such provision shall be deemed to be restated so as to be enforceable to the maximum extent permissible under law; the remainder of this Service Agreement shall remain in full force and effect.
- NOTICES. All notices will be personally sent by certified or registered mail, return receipt requested, or by nationally recognized overnight express courier, to the address specified herein or such other address as a party may specify in writing. Such notices will be effective upon receipt, which may be shown by confirmation of delivery. All notices to Ingenious Technology, LLC shall be sent to the attention of Legal Department, Ingenious Technology, LLC, 1868 Niagara Falls Blvd., Suite 200A, Tonawanda, New York 14150.
- NO WAIVER. The waiver by Ingenious Technology, LLC or the Customer of any breach of the Service Agreement by the other in a particular instance will not operate as a waiver of subsequent breaches of a same or different kind. The failure of either Ingenious Technology. LLC or the Customer to exercise any rights in a particular instance will not operate as a waiver of right to exercise the same or different rights in any subsequent instance.
- ASSIGNMENT. Customer may not assign or otherwise transfer the Service Agreement without Ingenious Technology, LLC’s prior written consent. The Service Agreement shall be binding upon and inure to the benefit of Ingenious Technology, LLC and the Customer’s successors and permitted assigns.
- FORCE MAJEURE. Neither Party shall be liable for any delay or failure due to force majeure and other causes beyond its control, including for acts of God, labor disputes, changes in government policy/law, war, epidemics, acts or omissions of vendors or suppliers, disruptions caused by failures of the Internet or service providers (including those providing electricity, telecommunications links and/or Internet connectivity), or other occurrences which are beyond its reasonable control. This provision shall not apply to any of Customer’s payment obligations. Failure of either Party to perform because of the occurrence of an event of force majeure lasting more than forty-five (45) days will, upon twenty-four (24) hours’ written notice to the other, represent a ground for termination only of the Service affected by such event (and not of the entire Service Agreement).
- DEFINITIONS. “AUP” means Ingenious Technology, LLC System’s Acceptable Use Policy. This policy prohibits use of the ingenious Smart Business Phones Service for predictive dialing, the creation of phone SPAM, or any attempt to tamper, probe, or scan the Ingenious Technology, LLC network, premise equipment or service offering. See Section 29 of these Terms and Conditions for the complete Acceptable Use Policy (AUP).
“Confidential Information” means non-public information that a Party provides and reasonably consider to be of a confidential, proprietary or trade secret nature, including but not limited to the Services, as well as Ingenious Technology, LLC’s (and Ingenious Technology, LLC’s licensors’) marketing, engineering and other plans, financial statements and projections, customer and supplier information, research, designs, plans, compilations, methods, techniques, processes, procedures, and know-how, whether in tangible or intangible form, and whether or not stored, compiled or memorialized physically, electronically, graphically, photographically, or in writing. Confidential Information shall not include Non-Confidential Information. “Service Activation Date” Service Activation Date occurs when the customer is able to utilize the Ingenious Smart Business Phones Service as covered by an applicable service order(s). The day following the Service Activation Date is the date on which billing commences for services rendered.
“Non-Confidential Information” means information which: (i) is, as of the time of its disclosure or thereafter becomes part of the public domain through no fault of the receiving party; (ii) can be demonstrated by credible evidence: (x) as rightfully known to the receiving party prior to the time of its disclosure, or (y) to have been independently developed by the receiving party; (iii) is subsequently learned from a Third Party not under a confidentiality obligation to the disclosing party; or (iv) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, provided that the receiving party has provided prompt written notice and assistance to the disclosing party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy to protect against disclosure.
“Third Party Products” means, collectively, any non-Ingenious Technology, LLC organization, software, products or services.
- ACCEPTABLE USE POLICY (AUP)
You and anyone you allow access to your premise or network are prohibited from violating, or attempting to violate, the security of the Services and the Ingenious Technology, LLC Equipment. Any such violations may result in criminal and civil liabilities to you. We will investigate any alleged violations, and, if a criminal violation is suspected, we will cooperate with law enforcement agencies in their investigations. Violations of the security of the Services and the Ingenious Technology, LLC Equipment include, without limitation, the following:
- Using or attempting to use the Services or the Ingenious Technology, LLC Equipment to create or distribute SPAM, making phone calls that are prohibited by local, state or federal law or for any other similar purpose that is not expressly permitted by the Ingenious Technology, LLC.
- Logging into an Ingenious Technology, LLC server, account or network area that you are not authorized to access
- Accessing data, equipment, network services or taking any action to obtain services not intended or authorized for your use;
- Attempting to probe, scan, or test the vulnerability of any system, subsystem or network
- Tampering, hacking, modifying or otherwise corrupting or breaching security or authentication measures, or
- Transmitting material that contains viruses computer programming routines or engines with the intent or effect of damaging, destroying, disrupting or otherwise impairing a computer’s functionality or the operation of the services or equipment owned or used by Ingenious Technology, LLC
- Interfering with, intercepting or expropriating any system, data or information; or interfering with service to any user, host, or network or “crashing” any computer system.
CONFIDENTIAL: Ingenious Technology, LLC, 1868 Niagara Falls Blvd., Suite 200A, County of Erie, Tonawanda, New York 14150 (1 January 2012)