1. DEFINITIONS; ACCESS TO SERVICES; AND FEES
1.1 Definitions. As used in this Agreement, the following terms shall mean:
“Agreement” means this MSA, the associated SLA, all applicable Customer Service Agreements and Statements of Work entered at any time between the parties, and any SA entered between Intrado and Customer from time to time.
“Circuit” means the actual connection(s) (wired, wireless or both) between Intrado and Customer over which Services are delivered.
“CSA/SA Service Period” or “Service Period” means the number of months that Customer has contracted to accept applicable Services from Intrado as stated on each governing CSA or SA. The Service Period shall include the Initial Service Period and all subsequent Annual Renewal Periods entered thereafter. The Initial Service Period shall commence upon the installation of the applicable Service.
“Custom Applications” mean specialized Intrado products that require Customer specific configurations including, but not limited to, ControlMaxx™ and MaxxSecure™.
“Customer Service Agreements” or “CSAs” mean collectively those documents which specifically define the Services ordered by Customer and which are entered between Intrado and Customer from time to time during the Term. CSAs set forth, among other things, the specific Services ordered by Customer; the Customer locations to which Services are to be provided; applicable Subscription Fees, NRCs and other fees; the Initial Service Period for the Services; and other detailed information regarding the Services to be provisioned to Customer. Multiple CSA(s), each covering one or more locations and/or one or more Services, may be entered between Customer and Intrado during the MSA Term. CSAs specifically include all attachments and exhibits thereto.
“Early Termination Cost” means costs payable to Intrado as a result of the early termination of part or all of contracted Customer Services as specifically stated herein.
“Legal Requirement” means all then-governing federal, state, local, municipal, foreign and/or international laws, ordinances, regulations, statutes, treaties, injunctions, judgments, decrees, orders and/or rulings rendered by any court, administrative agency or other governmental body of competent jurisdiction applicable to the matter at issue.
“Monthly Recurring Services” means Services provided by Intrado to Customer as specified in applicable CSA(s) or SA(s) and for which Customer incurs monthly recurring fees for Customer’s use of those Services. Examples of Monthly Recurring Services include but are not limited to hosted voice and network services.
“Non-Recurring Charge(s)” or “NRC” means any and all one-time charges for Intrado’s Services including fees directly charged by Intrado and those passed through to Customer from Intrado’s vendors and/or subcontractors. NRCs include but are not limited to installation fees, Custom Application fees, special construction charges, professional service and training fees, Purchased Equipment charges and any other one-time charge or fee. All such NRCs will be established in each CSA, SA or SOW either as a specific amount or detailed as being Customer’s responsibility.
“Professional Services” means Intrado’s professional consulting and support services specified in applicable Statement(s) of Work.
“Provided Equipment” means Intrado’s core and edge routers and switching devices, IP telephones, gateway devices, video and audio conferencing and/or any other devices that Intrado may provide to Customer from time to time to facilitate Customer’s access to the Services subject to the terms of this Agreement. Provided Equipment does not include Purchased Equipment as described below.
“Purchased Equipment” means any and all equipment purchased by Customer from Intrado pursuant to the terms and conditions of this MSA. Title to Purchased Equipment shall pass to Customer upon payment in full of the purchase price for such goods to Intrado.
“Services” means Intrado’s communications network and all services and features delivered over or through such network or other networks to Customer, including but not limited to Monthly Recurring Services, as specified in applicable CSA(s) and or SA(s), and/or Intrado’s Professional Services as specified in applicable Statement(s) of Work.
“Service Addendum” or “SA” means: (a) any written document executed by Intrado and Customer or (b) any oral or written instruction given by Customer or Customer’s authorized users to Intrado, that details the scope and charges, if any, relating to changes to an executed CSA and/or additional Services, locations, or Purchased Equipment to be covered by this MSA. Any such oral or written instructions given by Customer to Intrado shall become a binding Service Addendum upon Intrado’s installation and/or provision of the modified scope of Services or Purchased Equipment subject to the SA. Service Addendums shall establish any change in or additional Subscription Fees and/or NRCs.
“SLA” means Intrado’s Service Level Agreement, which specifies the target performance levels of Intrado’s Services, and the financial consequences of failing to meet those Service levels, as may be amended by Intrado from time to time.
“Statement of Work” or “SOW” means collectively those documents which specifically define the scope of Professional Services ordered by Customer and which are entered between Intrado and Customer from time to time during the Term. SOWs set forth, among other things, the specific Professional Services ordered by Customer; the Customer locations to which Professional Services are to be provided; applicable NRCs and other fees; projected timelines for the provision of the Professional Services; and other detailed information regarding the Professional Services to be provisioned to Customer. Multiple SOW(s), each covering one or more locations and/or one or more Professional Services, may be entered between Customer and Intrado during the MSA Term. SOWs specifically include all attachments and exhibits thereto such as the applicable pricing pages.
“Subscription Fees” mean all monthly recurring fees charged to Customer for the use of Intrado’s Services. Subscription Fees will be established in applicable CSA(s) and SA(s).
“Term” means the period of time from the Effective Date of this MSA through the date the last of the CSA(s), SOW(s) and/or SA(s) governed hereunder between Customer and Intrado expires or is terminated.
Additional terms are defined in other sections of this Agreement.
1.2 Customer’s Use of Service. Pursuant to the terms and conditions of this Agreement, Intrado grants Customer and Customer’s authorized users access to the Services. Under no circumstances shall Customer resell the Services. Such access shall include, but not be limited to, the use of the Provided Equipment that Intrado may supply from time to time to facilitate Customer’s access to the Services. Services may be provided or supported by Intrado affiliates, and all support shall be provided in English. Customer shall provide Intrado’s personnel with reasonable access to Customer’s premises to maintain the Provided Equipment and Services and to remove the Provided Equipment upon expiration or termination of this Agreement. Any material delay in repair or maintenance of Intrado’s Services caused by Customer’s failure to grant Intrado timely access to Customer’s premises shall be excluded from the calculation of any Service outages in the determination of any credits due Customer under the SLA. If Customer can grant access to the rooftop, wire chases, risers, and/or other spaces of any building in which Customer is located, Customer grants Intrado the right to install Provided Equipment, wiring and related devices in such locations. Additional Service-specific terms governing Customer’s access to and use of the Services may be found at https://www.westuc.com/additional-service-termsand are incorporated by reference as if fully set forth herein.
1.3 Payment of Fees and Charges to Intrado. Pursuant to the payment terms of Section 4, in consideration for Customer’s access to the Services, Customer shall remit timely payment of the Subscription Fees, NRCs, and other charges as set forth in the applicable CSA(s), SA(s) and SOW(s). Subscription Fees shall remain fixed for the initial Service Period (“Initial Service Period”) stated on the governing CSA or SA. Intrado may raise or lower the Subscription Fees for any Annual Renewal Period by providing written notice to Customer not less than ninety (90) calendar days prior to the expiration of the then-current Initial Service Period or Annual Renewal Period, whichever is applicable. If Intrado increases its Subscription Fees and/or other charges prior to such Annual Renewal Period, Customer may terminate all applicable CSA(s) and SA(s) without penalty upon written notice of termination delivered to Intrado at least sixty (60) calendar days prior to the date on which such increases are to become effective. Failure by Customer to provide timely notice of termination under this Sub-Section 1.3shall constitute a waiver of such right.
1.4 Intrado Retains Title to Its Provided Equipment. Intrado retains all right, title and interest to the Provided Equipment supplied by Intrado for use by Customer. Intrado may file this MSA as a substitute Form UCC-1 in any jurisdiction to secure Intrado’s rights in such Provided Equipment. Customer will not allow liens or other encumbrances to be placed on Intrado’s Provided Equipment. If such liens are asserted, Customer will notify Intrado and take immediate efforts at Customer’s expense to have such liens and/or encumbrances removed.
1.5 Customer’s LAN. Customer certifies that its Local Area Network(s) (“LAN”) is (are) "voice capable" and meets Ethernet specifications (i.e., the LAN is a minimum 10/100 Mbps full duplex switched Ethernet Network that runs over a 100% CAT 5 or better infrastructure without “daisy chaining” of switches). Any cost to upgrade, extend, or maintain the LAN shall be Customer’s responsibility. At Customer’s request, Intrado will provide a quote to Customer in order to determine whether Customer’s LAN meets the requirements on a site-by-site basis. For the sake of clarity, any LAN containing one hundred percent (100%) managed switches and category 5 or better cabling shall be deemed to meet Intrado’s requirements.
1.6 Costs and Fees May Increase If Customer Changes Service Locations or Quantities Ordered. Customer acknowledges that the Services described in this Agreement are specific to the exact quantities, location(s) and time frames for installation quoted at the time of execution of the applicable CSA(s), SA(s) and/or SOW(s) by Intrado. If Customer significantly changes the quantities of Service(s) or significantly delays, changes, or expedites the installation of any individual Circuit(s) or Services, Intrado may adjust the price of installation, other NRCs, and/or Subscription Fees associated with the Circuit(s) or Services at issue. If Customer elects to change either the installation location or type of Circuit after the Circuit has been ordered or installed, Customer agrees to pay in advance all charges associated with canceling the existing Circuit and installing the new Circuit including, but not limited to, cancellation fees charged to Intrado by third-parties and any increase in Subscription Fees and/or installation fees associated with the new Circuit. Customer shall provide Intrado with at least sixty (60) days advance written notice of any requested change in Service. Any increases in Subscription Fees related to said changes shall not invoke Customer’s rights of termination under Sub-Section 2.3below.
1.7 Special Construction Charges. Quoted installation fees reflect only Intrado’s direct charges for installation and connection on Intrado’s end of Circuits and/or the initiation of Services. Quoted installation fees do not include special construction charges that may be assessed by the third-party communication companies that install the Circuit(s). Such special construction charges will be passed through to Customer without markup and shall be invoiced by Intrado upon receipt of billings from the applicable third-party. Intrado will seek Customer’s approval for any special construction charges prior to initiating installation (such charges are typically less than $300 per Circuit; but special situations can result in higher charges). The period between Intrado’s notice to Customer of any such charges and Customer‘s response to such notice shall not be considered in the determination of Intrado’s compliance with the applicable installation SLA. If Customer elects not to incur such special construction charges, Intrado and Customer will work together to find an alternative solution. In the event the parties are unable to agree on an acceptable solution, Customer may cancel the affected Services, but only for the affected location. Customer shall be responsible for paying any direct costs incurred by Intrado for canceling such Services. Nothing in this Sub-Section 1.7shall be construed to allow Customer to terminate unaffected Services or unaffected locations.
Once Customer authorizes the expenditure of special construction charges, Intrado shall move forward up to the preauthorized amount. If during the Circuit installation process it becomes apparent the actual charges may exceed the preauthorized amount, Intrado will use reasonable efforts to seek Customer’s revised approval. However, if additional charges would result from terminating the installation process and the increased estimated charges represent less than a thirty percent (30%) increase over the original estimate, Intrado may proceed with installation and Customer shall pay the actual charges incurred regardless of whether Intrado informed the Customer of such increased cost.
1.8 Order of Precedence. In the event of any conflict between the terms and conditions set forth in this MSA and any CSA, SA or SOW, the following order of precedence shall apply: (a) SA, (b) CSA or SOW, and then (c) the MSA.
2. TERM, EARLY TERMINATION
2.1 Term. This MSA commences as of the Effective Date and shall remain in effect until the last of the CSA(s), SA(s) and/or SOW(s) expires or is terminated. Each CSA and SA shall continue for the Initial Service Period set forth therein and shall automatically renew for successive one (1) year Service Periods thereafter (each an “Annual Renewal Period”) unless terminated in accordance with the terms of this Agreement. Either party may terminate a CSA or SA upon the expiration of the Initial Service Period or any subsequent Annual Renewal Period by written notice of termination delivered to the other party at least sixty (60) calendar days prior to expiration of the then-current Initial Service Period or Annual Renewal Period, whichever is applicable.
2.2 Termination by Intrado for Cause. At any time during the Term of this Agreement, Intrado may terminate the MSA any applicable CSA, SA or SOW for cause should Customer materially breach any term thereof. Unless otherwise stated in the AUP for violations thereof, prior to any such termination, Intrado will provide Customer with at least thirty (30) calendar days prior written notice of its intent to terminate, which notice shall describe Customer’s breach in reasonable detail. Intrado’s required termination notice period set forth above shall be reduced to ten (10) calendar days in cases of Customer’s failure to pay monies due and owing and/or Customer’s violation of any Legal Requirement. Should Customer fail to cure such breach to Intrado’s reasonable satisfaction during the applicable notice period, the MSA and/or applicable CSA, SA or SOW may be immediately terminated by Intrado by subsequent written notice. If Intrado terminates this MSA or any or all Services covered by it for cause, Customer shall pay to Intrado the Early Termination Costs set forth in Sub-Section 2.4below. If Intrado subsequently agrees to reconnect any previously disconnected Services, Customer must bring its account current and pay the then-current reconnect fees prior to reconnection of the Services. Intrado may also terminate for cause in the event Customer becomes insolvent, assigns any or all of its assets for the benefit of its creditors, or voluntarily or involuntarily files for dissolution, liquidation or bankruptcy.
Customer’s obligations to pay all amounts owed to Intrado, including those in Sub-Section 2.4, shall survive termination of all or any portion of this Agreement pursuant to this Sub-Section 2.2. Further, in addition to any other remedies available under this Agreement, Intrado shall be entitled to recover from Customer all reasonable attorneys’ fees, costs of collection, and court costs as and when incurred by Intrado resulting from or in connection with any breach of this Agreement by Customer.
2.3 Termination by Customer for Cause. At any time during the Term, Customer may terminate a CSA, SA or SOW should Intrado materially breach the terms or conditions thereof relating to Intrado’s provision of Services. Prior to any such termination, Customer shall provide Intrado with at least thirty (30) calendar days prior written notice of intent to terminate, which notice shall describe Intrado’s breach in reasonable detail. Should Intrado fail to cure such breach to Customer’s reasonable satisfaction during the notice period, the applicable CSA, SA or SOW may be immediately terminated by Customer by subsequent written notice. Customer’s obligations to pay all amounts owed to Intrado through the date of Service cancellation shall survive termination of any CSA, SA or SOW pursuant to this Sub-Section 2.3.
2.4 Early Termination Cost Payable by Customer Upon Early Termination of Services. The Subscription Fees charged by Intrado are based on Customer’s agreement to purchase the quantity of Services for the full Service Period set forth in the governing CSA(s) and/or SA(s). Thus, other than termination by Customer under Sub-Section 1.3or for cause pursuant to Sub-Section 2.3above, if this Agreement and/or any CSA(s), SA(s) or Service(s) are terminated by either party, in whole or in part, for any other reason prior to the expiration of the applicable Service Period, Customer shall pay Intrado Early Termination Costs equaling one hundred percent (100%) of the Subscription Fees set forth in the applicable CSA(s) and/or SA(s) for each month remaining between the effective date of termination and the expiration date of the then-current Initial Service Period or Annual Renewal Period, whichever is applicable.
Customer acknowledges that it would be difficult or impossible to calculate Intrado’s actual damages incurred as a result of such early termination and that these Early Termination Costs represent a reasonable attempt to establish fair and equitable compensation payable to Intrado resulting from any such early termination.
2.5 Return of Intrado’s Provided Equipment upon Expiration or Termination. Upon expiration or termination of this Agreement, Customer will assemble Intrado’s Provided Equipment for delivery to Intrado. Intrado will be allowed prompt access to Customer’s premises for the purpose of removing such Provided Equipment. Customer will ensure that Customer’s landlords are informed of Intrado’s ownership of such Provided Equipment and, if requested by Intrado, will provide a letter from each such landlord acknowledging Intrado’s right of access to Customer’s premises for the purpose of removing Intrado’s Provided Equipment without restriction.
3. PROCEDURES GOVERNING CUSTOMER’S USE OF SERVICES
3.1 Monitoring. Intrado may monitor Customer’s use of the Services electronically from time to time to insure Intrado’s compliance with all governing SLAs, CSAs and/or SAs and may disclose any information necessary to satisfy any Legal Requirement, to operate the Services properly, and/or to protect Intrado or its other subscribers.
3.2 Customer Must Back-Up Its Own Data and Files. Intrado shall have no responsibility for Customer’s personal files and data (including voicemail, e-mail, or fax messages) that reside on, are transferred through, and/or that are attached to Intrado’s Provided Equipment or network. Customer shall be solely responsible for independent backup of all such data and files. Intrado reserves the right to delete Customer’s data and files after the expiration or termination of this Agreement.
3.3 Intrado Has No Control Over the Internet or Public Telephone Network. CUSTOMER ACKNOWLEDGES THAT INTRADO DOES NOT OPERATE OR CONTROL THE INTERNET, PUBLIC TELEPHONE NETWORK OR THE EXACT OR APPARENT GEOLOCATION OF IP ADDRESSES. CUSTOMER AND ITS AUTHORIZED USERS ASSUME ALL RISK OF LOSS OR DAMAGE THAT MAY ARISE FROM USE OR ACCESS TO THE INTERNET AND/OR PUBLIC TELEPHONE NETWORK, AND ASSUME THE SOLE RESPONSIBILITY TO EVALUATE THE ACCURACY, MERCHANTABILITY, COMPLETENESS AND USEFULNESS OF ALL MERCHANDISE, OPINIONS, ADVICE, SERVICES AND OTHER INFORMATION PROVIDED THROUGH THE SERVICES OR ON THE INTERNET AND/OR PUBLIC TELEPHONE NETWORK.
CUSTOMER ACKNOWLEDGES THAT THE INTERNET CONTAINS UNEDITED MATERIALS, SOME OF WHICH ARE SEXUALLY EXPLICIT AND/OR MAY BE OFFENSIVE. CUSTOMER HAS AUTHORIZED ITS USERS' ACCESS TO THE INTERNET AND SUCH MATERIALS CONTAINED ON IT AT THEIR OWN RISK.
3.4 Modification to Intrado’s Services. Intrado reserves the right to modify, revise, or upgrade its Monthly Recurring Services, including access procedures, menu structures, commands, documentation, vendors and Services offered; provided; however, Intrado shall not lower the bandwidth and/or other material features of the Services provided to Customer or increase the Subscription Fees in violation of Section 1.3 of this MSA.
3.5 The AUP. Customer shall use the Services only for lawful purposes. With regard to Monthly Recurring Services, Customer shall adhere to Intrado’s Acceptable Use Policy (“AUP”) as communicated from time to time at https://www.westuc.com/acceptable-use-policy. Other than the right to use the Services in accordance with this Agreement, Customer acquires no right, title, or interest in any Provided Equipment, hardware, software (including developed software), licenses, intellectual property rights and other rights or property interests relating to the Services or Intrado.
3.6 Restrictions on Certain Activities.
3.6.1 Customer shall not use distribution lists or mass electronic mailing software or send unsolicited e-mail utilizing the Monthly Recurring Services without obtaining Intrado’s prior written consent; except that Customer may send bulk e-mail to any entity with which it has a pre-established commercial relationship in accordance with governing law.
3.6.2 Customer shall not use Intrado’s trademarks, service marks, or trade names for advertising or promotion without Intrado’s prior written consent.
3.6.3 Customer shall not transmit, upload, receive, or store on or through Intrado’s network any material that: (a) violates any Legal Requirement (including, but not limited to, those Legal Requirements relating to call recording); (b) infringes any intellectual property or proprietary right of a third-party; (c) contains material that in Intrado’s reasonable opinion is fraudulent, illegal, threatening, obscene, libelous, or offensive; and/or (d) contains any viruses, worms, “Trojan Horses” or other code or features that may damage, disrupt or disable computers, networks or any information thereon. Customer’s obligation to prevent the receipt of any information in sections a through d above shall be limited to using commercially reasonable efforts to prevent the receipt or continuing receipt of such information.
3.6.4 Customer shall not engage in intentional or negligent activities while using the Services that are intended or likely to result in damage to any person, entity, or property including, but not limited to, any computer, network or the information thereon.
3.6.5 Customer shall not disassemble, decompile, or otherwise tamper with Intrado’s Provided Equipment and/or software residing thereon or with any Purchased Equipment or software.
3.6.6 Customer shall not utilize the Monthly Recurring Services to host bandwidth intensive web servers, proxy servers or any other Internet server that would be atypical of an enterprise organization’s normal office use without Intrado’s prior written consent, which shall not be unreasonably withheld.
3.6.7 If Customer receives Monthly Recurring Services, Customer shall not operate or conduct call center or telephone solicitation activities, or utilize streaming media servers, without Intrado’s prior written consent, which shall not be unreasonably withheld, unless specifically provided in an agreed upon CSA. All such activities shall be undertaken by Customer in strict compliance with all governing Legal Requirements, even if authorized by Intrado.
3.7 Certain Customer Responsibilities.
3.7.1 Customer shall be responsible for providing, maintaining and supporting customer-managed applications, software and software licenses and Customer’s LAN including, but not limited to, personal computers, site wiring, switches and related hardware, software, and peripherals, as well as providing electrical power to all devices and backup power supply if so desired. Intrado shall have no obligation to install, create, configure, or maintain any LAN or to configure, install or support any software, application or other equipment in or on Customer’s computers or LAN unless specifically provided for in the CSA(s) or SOW(s). Even if Intrado deploys any Customer-provided equipment, software, applications and/or devices on Customer’s premises, or installs Customer’s applications on Intrado’s servers on Intrado’s premises, Intrado shall have no responsibility for maintaining or supporting any such Customer-provided computer, facsimile, telephone, paging, networking, software, licenses, applications, equipment or other device used by Customer whether used in conjunction with the Services or not. If Customer engages Intrado’s technical support personnel to diagnose an issue and Intrado determines in its reasonable judgment that the issue is caused by a device, application, software or situation for which Customer is responsible, Customer shall pay for any time incurred by Intrado in diagnosing, troubleshooting, and/or repairing any of the above-mentioned equipment, software, applications or devices at Intrado’s then-current hourly rates for time and material service (“TM Charges”) as provided at https://www.westuc.com/time-and-materials-rates.
3.7.2 Customer and Intrado shall jointly agree on a user training plan that at minimum details the time(s) and location(s) for training and the amount of training time included for Monthly Recurring Services. In no event shall the length of training time included exceed that required to train in groups of less than five (5) users at a time. Customer shall make its personnel available for training at the times and locations set forth in such plan. If Customer fails to have its personnel available at the agreed upon times, Customer will pay for any additional time required by Intrado’s trainer(s) at the rates set forth at https://www.westuc.com/time-and-materials-rates. Unless otherwise provided in the CSA, training will be delivered remotely over Intrado’s network by a certified Intrado trainer. Unless otherwise agreed in advance, as part of developing Customer’s training plan, training will be done in groups of five (5) to ten (10) users. Receptionists and assistants will be trained separately from regular users. If Customer desires additional or alternative training, such training can be purchased at the prices set forth at https://www.westuc.com/time-and-materials-rateseither prior or subsequent to initial training. If Customer elects to have on-site training, either initially or at a later date, in addition to the applicable TM Charges, Customer will reimburse Intrado for all reasonable travel expenses incurred by the trainer including, but not limited to, air travel, automobile rental or usage, hotel and a per diem of $50.00 per day per trainer. If Customer changes the agreed Services, training, Provided Equipment, or equipment installation date(s), and Intrado incurs additional travel costs as a result, Customer will reimburse Intrado for such additional charges at Intrado’s actual cost.
3.7.3 Customer shall be responsible for payment of the full replacement cost of any Provided Equipment lost, stolen or damaged while in Customer’s possession (normal “wear and tear” excepted) including that caused by negligence, misuse, fire, flood, storm, earthquake, theft, vandalism, electrical disturbance or lightning damage.
3.8 911 Procedures and Disclaimers. FOR THOSE LOCATIONS WHERE INTRADO PROVIDES INTERCONNECTED VOICE SERVICES TO CUSTOMER, INTRADO AND CUSTOMER SHALL PREPARE A LIST CONTAINING THE SPECIFIC POSITION AND LOCATION OF EACH PHYSICAL IP PHONE INSTALLED, IN SUCH DETAIL AS REQUIRED BY E911 PROVISIONING GUIDELINES, FOR THE PURPOSE OF PROVIDING DETAILED LOCATION INFORMATION TO THE 911 OPERATOR WHEN 911 IS DIALED IN THE AREAS WHERE IT IS PROVIDED. INTRADO WILL PROVIDE STICKERS TO CUSTOMER FOR PLACEMENT ON EACH TELEPHONE PROVIDED BY INTRADO INDICATING THE INSTRUCTIONS FOR DIALING 911 AND WHICH HAVE A WARNING NOTIFYING THE USER OF THE 911 LIMITATIONS. CUSTOMER SHALL BE RESPONSIBLE FOR IMMEDIATELY PROVIDING NEW LOCATION INFORMATION TO INTRADO IN WRITING, OR OTHER METHOD APPROVED IN ADVANCE BY INTRADO, WHEN A TELEPHONE, USER, OR DEVICE IS MOVED TO A NEW LOCATION, WHETHER THE TELEPHONE OR DEVICE WAS PROVIDED BY, THROUGH, OR FROM INTRADO OR ANY OTHER PARTY. CUSTOMER ACKNOWLEDGES THAT 911 SERVICE IS NOT AVAILABLE IN THE EVENT OF A POWER FAILURE UNLESS EMERGENCY BACKUP POWER IS PROVIDED BY CUSTOMER. FURTHER, CUSTOMER ACKNOWLEDGES THAT INTRADO RELIES ON THIRD-PARTIES TO PROVIDE 911 SERVICES AND TO ALERT LOCAL EMERGENCY RESPONSE CENTERS OF EMERGENCY SITUATIONS. THEREFORE, CUSTOMER SHALL INDEMNIFY AND HOLD INTRADO, ITS OFFICERS, EMPLOYEES, AND AGENTS HARMLESS FROM ANY AND ALL CLAIMS ARISING FROM OR OUT OF CUSTOMER’S FAILURE TO TIMELY PROVIDE POSITION OR LOCATION CHANGE INFORMATION TO INTRADO, FAILURE TO PROVIDE BACKUP POWER TO ALL TELEPHONES, SWITCHING, ROUTING, AND/OR OTHER TRANSMISSION EQUIPMENT, AND/OR THE FAILURE TO COMPLETE 911 CALLS, WHETHER SUCH CLAIMS OR ACTIONS ARE INITIATED BY CUSTOMER’S EMPLOYEES, GUESTS, OTHER PERSONS, OR A GOVERNMENT AGENCY.
3.9 Legal Requirements. If any present or future Legal Requirement requires a modification or waiver of any term of the Agreement, the parties will promptly and in good faith undertake the actions required by such Legal Requirement. In the event of any governmental prohibition or required alteration of the Service, Intrado reserves the right to immediately suspend or terminate Service.
4. PAYMENT FOR SERVICES, FEES, AND CHARGES
4.1 Payment Terms. Intrado will invoice Customer monthly in advance for Subscription Fees and in arrears for NRCs, usage-based charges such as long distance and other charges and fees. NRCs are 100% earned by Intrado at the time they are performed. Custom Application charges are 100% earned for each Service when the first location utilizing the application is installed.
Intrado shall commence billing for Subscription Fees upon installation of the applicable Service; in the case of Circuits, this is the firm order commitment date from the carrier. Customer consents to receiving invoices electronically. Customer shall make payments by ACH transfer, wire transfer, or check. No Customer-provided preprinted or form terms including those on a purchase order, if any, will apply. Customer shall pay all uncontested invoiced charges in full within thirty (30) calendar days from invoice date. Should Customer dispute any invoiced charges, Customer must notify Intrado of its dispute in writing and in such detail as necessary for Intrado to evaluate the dispute. Such written dispute must be delivered to Intrado within thirty (30) calendar days of the applicable invoice date or Customer’s right to dispute charges shall be waived. Additionally, Customer must pay all undisputed charges by the applicable due date. Disputes shall only be considered if Customer’s account is otherwise current.
Delinquent charges shall be subject to a monthly service charge equal to the lesser of: (a) one and one-half percent (1½%) of the delinquent amount with a minimum charge of $5.00 or (b) the maximum interest charge allowed by governing law. In the event Customer fails to pay all uncontested invoiced charges by the applicable due date, Intrado may suspend all or any portion of the Services upon notice to the Customer until such time as all undisputed charges and applicable late fees have been paid in full. Following such payment, Intrado may reinstate Services to Customer only upon satisfactory assurance of Customer’s ability to pay for Services, including modified payment terms. If Customer fails to pay its current charges within thirty (30) calendar days of the applicable invoice date for two (2) or more consecutive months, in addition to all other remedies available to Intrado under this Agreement, Intrado may require that Customer remit a deposit of up to two (2) months average Subscription Fees and/or that Customer commence payment to Intrado by automatic ACH. If Intrado requires payment by ACH, Customer will timely provide all authorizations as may be required by Customer’s bank or financial institution. If Customer fails to provide such information, Customer will be in material default of this Agreement and Intrado will have all rights granted under Sub-Sections 2.2 and 2.4above. Unless Customer provides Intrado with valid and accurate tax exemption certificates when required in the locations where Services are provided prior to the applicable monthly invoice date, Customer shall be responsible for and shall pay when due all taxes (federal, state, local and/or any other applicable tax), universal services fees, recovery fees, and other similar charges imposed by governmental authorities, whether such tax or charge is applicable as of the Effective Date or at any later time during the Term.
4.2 Ramp-up of Services. Intrado shall grant Customer twelve (12) months from the Effective Date to install Services and incur Subscription Fees for the use of those Services in the amount of at least five thousand dollars ($5000.00). Commencing on the first anniversary of the Effective Date and through the remainder of the Term, Intrado shall bill Customer, and Customer shall pay Intrado, five thousand dollars ($5000.00) in monthly recurring fees for the Services or Customer’s actual Subscription Fees, whichever is higher, plus applicable taxes, fees and NRCs.
5. TERMS RELATING TO PURCHASED EQUIPMENT
The terms and conditions of this Section 5 shall apply to Purchased Equipment. Purchased Equipment may also be subject to applicable manufacturers’ end user license agreements (“EULAs”) such as the EULA for Cisco Systems, Inc. equipment and software at Cisco End User License Agreement as amended from time to time. Customer may purchase Purchased Equipment from Intrado at any time during the Term and the terms and conditions hereof shall apply to each such purchase.
5.1 Orders; Taxes. Intrado may invoice and/or ship one (1) or more parts of an order separately. Customer is responsible for, and will indemnify and hold Intrado harmless from, any applicable sales, use, or other taxes associated with a Customer order for Purchased Equipment. Customer must claim any exemption from tax at the time of purchase and provide the necessary supporting documentation. Any sales, use, or other applicable tax is based on the location to which the order is shipped.
5.2 Purchased Equipment Pricing Information: Availability Disclaimer. All Purchased Equipment pricing is subject to change until Intrado accepts Customer’s order in writing. All orders are subject to Purchased Equipment availability from the applicable manufacturers. Intrado does not guarantee it will be able to fulfill Customer’s orders until Intrado confirms Purchased Equipment delivery to Customer.
If Intrado chooses and contracts with a common carrier for delivery of Purchased Equipment to Customer, the applicable shipping cost shall be invoiced as a separate line item in the invoice for the Purchased Equipment or in a separate invoice. Intrado will undertake commercially reasonable efforts to procure market rates with such common carriers. If Customer chooses and contracts directly with a common carrier for delivery of Purchased Equipment to Customer, Customer shall pay such shipping costs directly. Any extraordinary shipping charges incurred for insurance required by Customer, overnight delivery, air freight delivery or other expedited shipping shall be paid by Customer.
5.3 Shipping Terms. All Purchased Equipment is shipped FOB shipping point. All right, title and interest to any software licensed to or provided to Customer in conjunction with the Purchased Equipment will remain with the applicable licensor(s). Intrado retains a purchase money security interest in the Purchased Equipment until payment in full is received.
5.4 Damaged Purchased Equipment. If Customer receives damaged Purchased Equipment upon shipment, Customer shall refuse the Purchased Equipment upon original delivery attempt. If damaged Purchased Equipment is accepted from the common carrier, such damage should be noted on the carrier delivery record. Customer is to save the Purchased Equipment and the original box and packaging and notify Intrado immediately to arrange for a carrier inspection and a pickup of damaged goods. Customer shall notify Intrado through Customer’s designated installation coordinator at 1-800-773-3037 (Monday through Friday 8:00AM - 5:00PM EST) within five (5) business days of receipt of damaged Purchased Equipment. Timely receipt of such information is necessary for Intrado to file or assist Customer in filing applicable damage claims with the common carrier.
5.5 Export Sales. If any transaction governed hereunder involves an export under the Export Administration Regulations, the commodities, technology and/or software sold or distributed hereunder are exported from the United States in accordance with the Export Administration Regulations. Diversion, use, export, or re-export contrary to United States law is prohibited. The commodities, technology, and/or software sold or distributed hereunder may not be exported or re-exported to Cuba, Iran, Sudan, North Korea, or Syria or to entities and persons that are ineligible under United States law to receive United States commodities, technology, and/or software. In addition, manufacturers' warranties for exported products may vary or may be null and void for products exported outside the United States.
5.6 Warranties on Purchased Equipment. CUSTOMER ACKNOWLEDGES THAT INTRADO IS NOT THE MANUFACTURER OF THE PURCHASED EQUIPMENT. CUSTOMER FURTHER ACKNOWLEDGES THAT IT IS NOT RELYING ON INTRADO TO DETERMINE IF THE PURCHASED EQUIPMENT CHOSEN BY CUSTOMER WILL FULFILL CUSTOMER’S SPECIFIC NEEDS OR REQUIREMENTS. EXCEPT AS SPECIFICALLY STATED BELOW, THE PURCHASED EQUIPMENT IS SOLD BY INTRADO TO CUSTOMER “AS IS” AND INTRADO DOES NOT EXTEND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ONLY THOSE EXPRESS WARRANTIES PROVIDED DIRECTLY BY THE MANUFACTURER OF SUCH PURCHASED EQUIPMENT ARE AVAILABLE TO CUSTOMER, COPIES OF WHICH MAY BE OBTAINED FROM THE MANUFACTURER. INTRADO DOES NOT WARRANT AND IS NOT RESPONSIBLE OR LIABLE FOR ANY WARRANTY WORK OR SERVICES PROVIDED BY SUCH PURCHASED EQUIPMENT MANUFACTURERS AND/OR ANY THIRD-PARTIES RETAINED TO PROVIDE SUCH WARRANTY WORK OR SERVICES.
However, so long as Customer continues to purchase Monthly Recurring Services from Intrado under this Agreement, and is using the Purchased Equipment in conjunction with such Monthly Recurring Services, Intrado will repair or replace defective Purchased Equipment and/or Purchased Equipment damaged due to normal wear and tear caused by Customer’s reasonable use. For the purposes of this second paragraph of Sub-Section 5.6, the definition of Purchased Equipment shall be limited to IP telephones purchased by Customer from Intrado and used by Customer with the Services. Customer shall properly package and ship any such defective or damaged Purchased Equipment to Intrado at Customer's expense. Intrado shall properly package and ship any new or repaired Purchased Equipment to Customer at Intrado's expense. This repair and replacement guarantee specifically excludes damage caused by Customer misuse, abuse, intentional acts, acts of God, fire, flood, storm, earthquake, theft, vandalism, civil disobedience, electrical disturbances, or lightning damage, and any and all other damage or loss not caused by normal wear and tear to the Purchased Equipment associated with Customer’s reasonable use in conjunction with the Monthly Recurring Services, all as determined in Intrado’s sole and exclusive judgment.
5.7 Restocking Fee. If Customer terminates all or any portion of an order for Purchased Equipment for any reason after executing a CSA, SA or SOW for the purchase of said Purchased Equipment, Customer shall pay to Intrado a restocking fee of 20% of the purchase price of all of said Purchased Equipment. If Intrado, acting in good faith, is unable to return the Purchased Equipment to the applicable vendor, however, Customer will reimburse Intrado for 100% of the cost of the Purchased Equipment.
6. DISCLAIMER OF WARRANTIES
INTRADO AND ITS SUPPLIERS PROVIDE THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER INTRADO, ITS AFFILIATES OR SUPPLIERS WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
INTRADO DOES NOT EXTEND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY PROVIDED EQUIPMENT SUPPLIED UNDER THIS AGREEMENT. ONLY THOSE WARRANTIES PROVIDED DIRECTLY BY THE MANUFACTURER OF SUCH PROVIDED EQUIPMENT ARE AVAILABLE TO CUSTOMER, COPIES OF WHICH MAY BE OBTAINED FROM THE MANUFACTURER.
7. LIMITATION OF LIABILITY
INTRADO WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE AND MAINTAIN THE SERVICES FOR CUSTOMER’S USE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND ANY APPLICABLE CSA, SA OR SOW. UNDER NO CIRCUMSTANCES, HOWEVER, SHALL INTRADO OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ITS AUTHORIZED USERS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THE SERVICES OR ANY BREACH OF THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF GOODWILL AND/OR LOSS OF BUSINESS (EVEN IF INTRADO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
IF INTRADO MATERIALLY BREACHES ITS OBLIGATIONS UNDER THIS AGREEMENT, CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES SHALL BE TO TERMINATE THE APPLICABLE CSA OR SA IN ACCORDANCE WITH SECTION 2 ABOVE, DISCONTINUE USING THE AFFECTED SERVICES, AND TO RECEIVE A REFUND OF SUBSCRIPTION FEES FOR ANY PERIOD IN WHICH THERE WAS A SUBSTANTIAL AND SUSTAINED MATERIAL FAILURE OF THE MONTHLY RECURRING SERVICES. IN NO EVENT SHALL CUSTOMER ASSERT ANY CAUSE OF ACTION AGAINST INTRADO MORE THAN TWELVE (12) MONTHS AFTER SUCH CAUSE OF ACTION ACCRUES. IN NO EVENT SHALL INTRADO OR ITS SUPPLIERS’ LIABILITY HEREUNDER EXCEED THE AMOUNT OF SUBSCRIPTION FEES PAID BY CUSTOMER DURING THE MOST RECENT TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM REGARDLESS OF THE LEGAL THEORY OF RECOVERY. THE PROVISIONS OF THIS AGREEMENT ALLOCATE RISKS BETWEEN THE PARTIES. THE PRICING SET FORTH HEREIN REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
Customer shall indemnify, defend, and hold harmless Intrado, its licensors, suppliers, employees, officers, directors, agents, affiliates, and assigns from and against any third-party claim, action, suit, proceeding, cost or expense (including but not limited to, attorneys’ fees) arising out of or resulting from: (a) a breach by Customer of any term of this Agreement, CSA, SA or SOW; (b) Customer-provided hardware, software or other materials or devices; (c) Intrado’s compliance with any of Customer’s instructions or specifications or (d) Customer’s users’ use of the Services or the transmission or dissemination of any information, data or software on or over the Internet. Intrado shall indemnify, defend and hold harmless Customer, its licensors, suppliers, employees, officers, directors, agents, affiliates, and assigns from and against any third-party claim, action, suit, proceeding, cost or expense (including but not limited to, attorneys’ fees) arising out of or resulting from the breach by Intrado of any provision of this Agreement, CSA, SA or SOW.
9. Governing Law and Forum Selection
This Agreement is executed and accepted by Intrado in the Commonwealth of Kentucky and shall be interpreted and construed under the laws of the Commonwealth of Kentucky, without regard to Kentucky’s conflicts of laws principles. Customer hereby irrevocably consents and submits, generally and unconditionally, to the exclusive personal and subject matter jurisdiction of the state and federal courts sitting and having jurisdiction in Louisville, Jefferson County, Kentucky (and all appellate courts therefrom) over any and all actions or proceedings arising out of or related to this Agreement.
10. CONFIDENTIALITY AND GENERAL DATA PROTECTION REGULATION
Confidential Information shall mean information that derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use (“Confidential Information”). Confidential Information includes, without limitation, the terms of this Agreement; business strategies; marketing plans; industry and competitive information; technology; pricing; employee information; and financial information but shall not include any information (i) independently developed by a party, (ii) generally available to the public other than by a party's breach of this Agreement, (iii) already known by a party at time of disclosure to that party, or (iv) rightfully received from a third party without restriction on disclosure or an obligation of confidentiality running directly or indirectly to the other party.
Each party to this Agreement agrees to use commercially reasonable efforts to protect against unauthorized disclosure all Confidential Information of the other party. The parties agree that all Confidential Information shall be disclosed only to those affiliates, employees, suppliers, partners and advisors on a need-to-know basis and who agree to be bound by confidentiality terms and conditions at least as stringent as those herein. Upon termination of this Agreement, each party shall, upon request, promptly return or destroy the other party’s Confidential Information except as may be required for backup, disaster recovery or business continuity and in such case the obligations hereunder shall survive until such Confidential Information is destroyed. Nothing shall prevent or prohibit the receiving party from providing access to Confidential Information as may be required by law, rule or regulation provided that the receiving party gives as much notice as is reasonably practical and legally permissible, and provides reasonable assistance to the disclosing party in challenging the disclosure so required by law, rule or regulation.
The following two paragraphs apply to Customer’s locations in the European Union. Each party agrees to comply with any applicable data protection legislation existing in all jurisdictions in which this Agreement is performed (together, the “Data Protection Laws”). The parties agree the provision of the Services may involve the collection, processing, storage or recording of certain “Personal Data” or “Personal Information” (as defined by the applicable Data Protection Laws) of Customer and the participants. Intrado hereby undertakes that it will: (i) Use and process any such Personal Data, which may include but is not limited to first and last names, telephone numbers, access and connection data, account numbers and any other data connected to the Services, for the purpose of providing and administering the Services and as outlined in the Intrado’s privacy statement; (ii) Process the Personal Data in accordance with Customer's instructions for the duration of this Agreement in order to provision the Services; (iii) Implement and maintain commercially reasonable technical and organizational measures, insofar as it is possible, for the fulfilment of Customer’s obligations to respond to requests by Data Subjects (defined below); (iv) Take reasonable steps to destroy or permanently de-identify Personal Data when it no longer is necessary to retain it; (v) Ensure that its personnel authorized to process the Personal Data have committed themselves to confidentiality or are under appropriate statutory obligations of confidentiality; (vi) Impose similar obligations under this clause on any of its third party suppliers that process Personal Data by way of a written agreement; (vii) Notify the Customer of a “Personal Data Breach” as defined under the Data Protection Laws without undue delay after becoming aware of it; (viii) Implement appropriate security measures to ensure an adequate level of protection of the Personal Data; and (ix) Make available all information necessary to demonstrate compliance with the Data Protection Laws and allow for audits.
According to the Data Protection Laws, the Parties acknowledge Intrado acts as a “Data Processor” in relation to the Personal Data of Customer it processes on Customer's behalf and Customer remains the “Data Controller” with respect to such Personal Data. The “Data Subjects” are the users of the Services. Personal Data is collected, processed and/or stored by Intrado, its affiliates and their third party suppliers in the United States of America, the United Kingdom, the European Union and the rest of the world. Customer represents and warrants it has a valid lawful basis in order for Intrado to process the Data Subject’s Personal Data in connection with the Services in accordance with applicable Data Protection Laws. Intrado processes Personal Data in accordance with its privacy statement located at: https://www.westuc.com/en-sg/west-uc-privacy-statement-emea acting as a Data Processor under Customer’s control.
11. MISCELLANEOUS PROVISIONS
11.1 Force Majeure. Each party shall be excused from performance hereunder due to delays occurring by reason of circumstances beyond its reasonable control, including acts of God or of the public enemy; war; terrorism; riots; civil disobedience; weather; fire or explosion; flood; stability or availability of the Internet; the elements; telecommunication system failure; technology attacks; epidemic; embargoes; quarantine; viruses; strikes; failures, fluctuations or unavailability of electrical power, Purchased Equipment, Provided Equipment, or Circuits; lockouts; disputes with workmen or labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or requests of any governmental authority; or any other cause beyond its reasonable control, whether or not similar to the foregoing.
11.2 Waiver. The failure of either party to exercise any right created hereby shall not constitute a future waiver by such party. No waiver by either party of any provision of this Agreement shall be deemed, or will constitute, a waiver of any other provision, nor will any waiver constitute a continuing waiver. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof.
11.3 Assignment. Neither party may assign this Agreement in whole or in part without the prior written consent of the other party; provided that either party may freely assign this Agreement to an affiliate or to a successor that has purchased all or substantially all of its assets or equity and, in the case of the Customer, such third party meets Intrado’s then-current credit guidelines. This Agreement and all applicable CSA(s), SA(s) and SOWs shall be binding upon the parties and their respective permitted successors and assignees.
11.4 Notices. Notices, demands, or other communications given by either party shall be sent to the business address of the recipient and shall be deemed to have been given when made in writing and delivered in person, or upon receipt, if: (a) deposited in the U.S. mail, postage prepaid, certified mail, return receipt requested; (b) sent by nationally recognized overnight air courier; or (c) sent by fax transmission or e-mail with such transmission confirmed by telephone. Notices to Intrado shall be addressed to its Legal Department.
11.5 Execution. This Agreement may be executed in multiple counterparts, each of which shall be considered an original and all of which shall constitute one and the same instrument, and may be evidenced by a scanned or electronic copy.
11.6 No Agency Created. Intrado shall be an independent contractor to Customer. Neither Customer nor Intrado shall be deemed to be an agent, partner or joint venturer of the other in the conduct of Customer’s or Intrado’s business or otherwise.
11.7 Integration. This Agreement and the documents referenced and incorporated herein constitute a fully integrated contract between the parties regarding its subject matter. This Agreement supersedes all prior or contemporaneous written or oral agreements related thereto. Any and all CSAs, SAs and or SOWs entered between the parties prior to the Effective Date hereof are now governed by this MSA. No provision of this Agreement may be amended, modified, or altered except by subsequent written agreement signed by both parties. No evidence of course of performance, course of dealing, or usage in trade shall be permitted to alter or amend any term or condition of this Agreement.
12. ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO CLOUD CONTACT PRO
The additional terms and conditions in this Section 12 are applicable only to Intrado’s Cloud Contact Pro Service.
12.1 Inbound voice Service. Customer shall not be receiving inbound voice Services as part of the Cloud Contact Pro Service.
12.2 Data Connectivity.
12.2.1 In order to use Cloud Contact Pro, Customer will need to connect to Intrado over either public connectivity (i.e. the Internet) or private Internet-service-provider connectivity (e.g. leased line, MPLS, private DSL or other technologies). In all cases, Customer must carefully ensure that all of Intrado’s prerequisite requirements for Internet connectivity, firewall configuration and local network configuration are met in full to avoid problems, poor quality voice experiences and other issues. If upon investigation Intrado finds that Customer failed to follow Intrado’s prerequisites (or if Customer has erroneously confirmed that Customer has), then Intrado shall be entitled to charge for Intrado’s time in respect of any additional effort that Intrado has incurred in troubleshooting or supporting Customer to resolve such issues.
12.2.2 Delays to Customer’s ability to use the Service due to the provisioning lead times associated with private connectivity circuits or public Internet circuits will not be reason to delay the Service Commencement Date for the service and our Ready for Service date shall stand regardless. “Service Commencement Date” is the date Intrado advises Customer that Cloud Contact Pro is Ready for Service as set out in section 12.3.1.
12.2.3 Customer acknowledges that Customer is entirely dependent upon the availability of public or private connectivity to access and use Cloud Contact Pro. Customer acknowledges Intrado’s strong recommendation to ensure that Customer has a resilient connection to the network to avoid any interruption to Customer’s usage of the Service. Customer may choose to use a second public Internet connection to provide back-up to a primary public or private connection, or Customer may provide multiple private circuits to deliver to different sites in both Customer’s network and Intrado’s. Customer is responsible for correctly configuring Customer’s network to ensure that automatic failover occurs in the event of a failure of the primary connection and recovery once service is re-established to the affected connection, and Customer is solely responsible for deciding which level of resilient connectivity is appropriate for Customer’s business.
12.2.4 Where Customer contracts with Intrado to provide any data connectivity to Customer’s sites, then Customer will provide Intrado with all and any assistance to enable the delivery of the Circuits, (which assistance shall be time critical) in Customer’s securing access and where appropriate any third party consents to enable the delivery of the Service.
12.3.1 Intrado will advise Customer when Cloud Contact Pro is ‘Ready for Service.’ The Ready for Service date is the date when Customer could use Cloud Contact Pro or any part of it for commercial gain. Intrado will charge Customer the Subscription Fees for Cloud Contact Pro specified in the applicable CSA and Customer’s transactional usage charges as of the Ready for Service date regardless of whether Customer is using the Service in part, in full, or not at all.
12.3.2 Call recording charges are billed per minute or part thereof. Call recording storage charges are billed per minute per month or part thereof that calls are stored.
12.4 Security and Information.
12.4.1 Intrado will maintain reasonable security measures in an effort to safeguard Customer Information from unauthorized access and use, and to minimize the risk of a security breach. Customer Information is defined as data input, created or used by Customer in using the Software and Contact Center Service.
12.4.2 Encryption techniques (where appropriate) may be used for protecting Customer Information on input and transmission over the Intrado network.
12.4.3 If Customer learns about or is informed of any components, processes or methods of operating any software comprised in any Service it shall treat such knowledge or information as Intrado’s trade secret, and it will not use it to the benefit of any party other than Intrado or convey it in any way to any third party or allow any third party to acquire it.
12.4.4 Customer is entirely responsible for security of access to Customer’s computer systems, Customer’s networks and Customer’s infrastructure. Customer will ensure Customer deploys firewalls, takes backups and uses antivirus and anti-malware / anti-spam software on all of Customer’s systems.
12.5 Outbound Voice Service.
12.5.1 The telecom market for call termination pricing is dynamic and the costs of calls to different destinations change on a daily basis at a wholesale level. The CSA contains a domestic long-distance rate that shall be fixed for the initial Service Period. International long-distance rates are variable and subject to regular modification due to changes in market conditions, wholesale prices and other circumstances beyond Intrado’s control such as regulatory events. In the unlikely event that we are forced by a regulator to change a usage charge that has been fixed in the CSA during the initial Service Period, Intrado will notify Customer of the relevant rate change for the destination in question.
12.5.2 No Emergency Calls. If Customer is not purchasing interconnected voice over Internet protocol (VoIP) from Intrado, Intrado will not be providing emergency services to Customer. Cloud Contract Pro does NOT support any emergency calls to 911. Cloud Contact Pro is NOT an interconnected VoIP service, and it is not a replacement for your primary telephone service. There are important differences between interconnected VoIP service and Cloud Contact Pro. Customer acknowledges and understands that Customer must make additional arrangements in order to call 911. It is Customer’s responsibility to purchase interconnected VoIP or traditional wireline telephone services that offer access to 911. Customer is responsible for informing all end users that may use Cloud Contact Pro that it is not possible to support or carry 911 calls using Cloud Contact Pro, and that they may access emergency services via the additional arrangements that Customer has made available for Customer’s end users.
12.6 Responsibility for Content and Transmitting Messages.
Customer represents and warrants that:
12.6.1 It is solely responsible for the content (“Content”) of any messages or recordings (“Messages”) it sends to customers or prospective customers (“Recipients”) and it has the legal right to use all Content and send all Messages to the Recipients (including obtaining any required consents from the Recipients) and the content, timing and purpose of all Messages, and Customer’s campaigns and programs are in compliance with all applicable laws, rules and regulations;
12.6.2 Customer is the transmitter of all Content and Messages and Intrado is merely acting at Customer’s direction as a technology conduit for the transmission of the Content and the Messages;
12.6.3 Intrado’s use of the Content shall not violate the rights of any third party or any law, rule or regulation;
12.6.4 Customer has obtained prior express consent to contact each wireless phone number delivered by Customer to Intrado in connection with the provision of any Services delivering a prerecorded or text message (“Notification Services”);
12.6.5 The intended contact recipient is the current subscriber, or the non-subscriber customary user of, to the wireless phone number;
12.6.6 Customer has (a) incorporated an interactive opt-out mechanism as part of any program relating to any Services or (b) the contacts that are the subject of such Services are not initiated to induce the purchase of goods or services or to solicit a charitable contribution (“Solicitations”);
12.6.7 Customer has, unless an exemption applies, obtained from the recipient of any Solicitation an express written agreement that meets the requirements set forth in Section 310.4(b)(1)(v)(A) of the FTC’s Telemarketing Sales Rule and Section 64.1200(f)(8) of the FCC’s Telephone Consumer Protection Act Rules; and
12.6.8 Customer will not transmit or allow to be transmitted any Content or Messages that: (a) it does not have a right to make available under any law or under contractual or fiduciary relationship; (b) are false, inaccurate, misleading, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; harmful to minors in any way; (c) infringe any patent, trademark, trade secret, copyright, or other proprietary rights or rights of publicity or privacy of any party; (d) utilize any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, or any other forms of solicitation; or (e) interfere with or disrupts the Services or servers or network operator networks.
Upon request, Customer shall provide reasonable proof of compliance with the provisions set forth in this section and where Intrado reasonably believes that Customer may not have complied with such provisions or with all laws, rules and regulations, Intrado may, at its option (i) scrub all numbers against any appropriate data base deemed necessary to remove all wireless phone numbers, (ii) insert an interactive opt-out mechanism and pass the resulting data to Customer or (iii) not provide any Services.