These New Era Communication Terms of Service (hereinafter referred to as the “Terms” or “Agreement”) apply to the use of products or services provided by New Era Communication LLC (“New Era Communication”, “New Era” or “Company”) to the person or entity identified in a valid and binding Sales Quotation or Sales Order (the “Customer”) and are an integral part of the agreement between New Era Communication and Customer. The Customer and New Era Communication are sometimes collectively referred to herein as the “Parties,” or individually as a “Party”. By ordering, purchasing or using the Services, Customer agrees to be bound by these Terms, which among other things, require mandatory arbitration of disputes instead of a jury trial and limit New Era Communication’s liability.
PURSUANT TO FCC REQUIREMENTS, New Era Communication IS REQUIRED TO ADVISE ITS CUSTOMERS OF ANY LIMITATIONS THAT E911 SERVICE MAY HAVE IN COMPARISON TO TRADITIONAL E911 SERVICE, WHICH ARE SET FORTH AT SECTION 34 BELOW AND IN THE E911 DISCLOSURE NOTICE AND ACKNOWLEDGEMENT, WHICH CAN BE FOUND AT HTTPS://WWW.New Era.COM/BUSINESS/LEGAL-POLICY-CENTER/BUSINESS-CLOUD/E911/.
1. Definitions: The following capitalized terms, as used in this Agreement, shall have the meanings set forth below:
“Activation” means when the Customer’s Service is available for Customer’s use.
“Activation Date” means the date of Activation.
“Affiliate(s)” means, with respect to a Party, any entity that Controls, is Controlled by or is under common Control with the entity. “Control,” for purposes of this definition, means the direct or indirect ownership or control of more than fifty percent (50%) of the voting equity of the subject entity.
“Applicable Laws” means any and all applicable federal, state or local laws, rules or regulations, including, but not limited to applicable restrictions concerning call recording, call monitoring, call interception and/or direct marketing or telemarketing.
“RUP” means the New Era Communication acceptable and reasonable use policy set forth in Sections 18 & 19.
“Customer Equipment” means all equipment owned, leased or otherwise provided by Customer, or which is specifically identified in one or more Sales Orders as Customer Equipment, used in connection with the Services. “Customer Equipment” includes equipment sold by New Era Communication to Customer but does not include New Era Communication Equipment.
“Customer Premises” means the physical location(s) owned or leased by Customer where Services are provided or New Era Communication Equipment will be used or stored.
“E911 Disclosure” means the provisions set forth in the New Era Communication E911 Disclosure Notice and Acknowledgement posted on https://www.New Era.com/business/legal-policy-center/business-cloud/e911/ or attached to and incorporated by reference into a Sales Order stating New Era Communication’s policies regarding the availability and limitations of E911 Service.
“In-App Purchase” means the Customer’s purchase of New Era Communication products or services from within a mobile application made available on a third-party online app store such as the Apple® App Store® or Google Play™ online app stores, and where payment is processed by the third-party online app store.
“Sales Order” means a Sales Quotation as described in Section 2 that has been accepted by an authorized representative of Customer and shall automatically incorporate these Terms by reference. A Sales Order arises once a Customer accepts a Sales Quotation following: (a) initiation of the New Era Communication Services; or (b) upon Customer’s successful addition of New Era Communication Products and/or Services via the online process or via phone by a Customer administrator; and the Sales Quotation is subsequently accepted by New Era Communication.
“Service” or “Services” means products or services provided or made available by New Era Communication to Customer that are (a) set forth in a Sales Order, or (b) purchased by Customer via In-App Purchase.
“Service Term” or “Term” means the period of time (commencing upon the Activation Date) during which New Era Communication provides Services to Customer.
“Shipping and Handling” means any fees and costs payable by Customer to New Era Communication in connection with packaging, shipping, or processing New Era Communication Equipment or Customer Equipment to a Customer Premises.
“Software” means proprietary software (including documentation relating to such software) owned or licensed by New Era Communication, or which New Era Communication has a right to sublicense under this Agreement, which software is either provided to Customer under this Agreement or is used by Customer in connection with the Services.
“Taxes and Fees” means any taxes and fees arising in any jurisdiction imposed on or incident to the provision, sale or use of Service and New Era Communication Equipment, including value added, sales, use, gross receipts, excise, franchise, public utility or other taxes, fees, duties or surcharges (including universal service, 911 and other regulatory fees and surcharges), whether imposed on New Era Communication or a New Era Communication Affiliate.
“New Era Communication” or “New Era” means New Era Communication LLC, a Delaware corporation, or any Affiliate providing Services to Customer.
“New Era Communication Equipment” means all equipment that is used, leased or otherwise provided by New Era Communication to Customer for use in connection with the Services, including phone hardware (e.g., phones, routers, switches, SD-Wan devices, and battery backup). New Era Communication Equipment does not include Customer owned hardware or equipment or hardware and equipment that Customer purchases through New Era Communication.
2. Sales Agreement: Services will be described in a “Sales Quotation” that shall include: (i) the price, location, and other information about the Services; (ii) the details relating to equipment being offered for sale or lease to Customer; and (iii) if applicable, associated installation, maintenance, shipping or delivery requirements. Notwithstanding the foregoing, for In-App Purchases only, the “Sales Quotation” shall be deemed to be the description of Services presented to Customer and information provided by Customer within the in-app sign-up process, prior to Customer’s confirmation of the purchase of the Services. Upon acceptance of a Sales Order by New Era Communication, New Era Communication will provide, and Customer will pay for and receive from New Era Communication, each Service pursuant to the terms and conditions of each Sales Order and this Agreement. Customer may increase the quantity of Services at existing Customer Locations at any time during the Initial Service Term or Renewal Service Term (“Additional Services”) by entering into an addendum or change order that sets forth the specific Additional Services requested. Each such addendum or change order shall be subject to New Era Communication’ acceptance (including by the rendering of the Additional Services), and upon such acceptance shall be considered an amendment to this Agreement and subject to the terms herein. Service Fees will be increased to reflect the Additional Services, subject to the same pricing and payment terms as are set forth in the applicable Sales Order. Additional Customer Locations must be contracted under new Sales Orders.
3. Terms, Conditions and Policies. These Terms incorporate and include addenda and policies that are set forth in an addendum, schedule, exhibit or amendment to a Sales Order or this Agreement (collectively, the “Terms”). These Terms supersede and replace all terms and conditions set forth in any documents issued by Customer, including purchase orders and specifications. New Era Communication reserves the right to change any of the Terms at any time, but only on a prospective, not retroactive, basis. New Era Communication will provide Customer thirty (30) days advance notice of changes to the Terms that would have a materially adverse effect on Customer. Notice may be provided via Customer’s invoice or by e-mail to the most recent email address associated with Customer’s account. Changes will become effective on the next business day following the thirty (30) day notice period and Customer agrees to be bound by any changes after such thirty (30) day notice period. Notwithstanding the foregoing, notice of changes to third-party terms incorporated into these Terms shall be governed by such third-party terms.
5. Authorizations. Customer shall provide New Era Communication, at no cost to New Era Communication, all permissions, consents or authorizations necessary to activate, maintain, inspect, and repair the products and/or Services and any New Era Communication Equipment, including (if applicable) the right to access and enter Customer’s Premises.
6. High Speed Internet Connection Required. Customer understands, acknowledges, and agrees that: (i) Customer must have a high-quality high speed internet connection to use the Services; and (ii) New Era Communication is not providing an internet connection for Customer. New Era Communication does not control and is not responsible for: (i) Customer’s internet connection; (ii) the quality of Customer’s internet connection; (iii) any third party products and/or services related to Customer’s internet connection; or (iv) problems with the Services that are caused by or related to Customer’s internet connection. New Era Communication will not contact any of the internet providers and/or service or product providers on Customer’s behalf.
7. User Designation. Customer may designate one or more users to be an account administrator with full administrative control of Customer’s account from the New Era Communication user interface. For most New Era Communication customers, the primary administrator for your account is known as the Superuser or, in some cases, a primary administrator (collectively hereinafter, “Superuser”). The individual assigned to be the Superuser is an individual designated by Customer through the online sign-up process or, if the agreement was not entered into online, the individual whose name is identified on the Sales Order. The Superuser: (i) has the ability to make changes to the Customer account (e.g., service additions, service deletions, assignment of users, account cancellations, updates to credit cards, etc.); and (ii) is the authorized individual on Customer’s account with respect to transferring (or “porting”) of your telephone numbers to a carrier other than New Era Communication. The Superuser may assign one or more additional administrators on the account and may re-assign “Superuser” status to another user. In the event that Customer desires information regarding a customer service record or actual call log details, the information requests must come from Superuser or an administrator. However, New Era Communication shall respond to these requests by transmitting the requisite information to the email address on file for the Superuser.
a) Company Contact. The “Company Contact” for the account is assigned through the online sign-up process. The Company Contact shall refer to the individual(s) who will receive messages from New Era Communication concerning matters of general relevance to the account (e.g., notices of updates to the account, billing notices, maintenance alerts, etc.). Such notices are typically provided through electronic mail. A Company Contact may or may not be the Superuser or an administrator for the account.
b) Reassigning Superuser Designation. In the event that Customer seeks to re-assign the Superuser designation on Customer’s account and the Superuser is unable to make the change, New Era Communication requires that Customer either: (i) submit an email from the Superuser’s email address on file with New Era Communication; or (ii) provide a written request, on Customer’s letterhead and executed by an officer or owner of the company which Customer represents.
c) Adding Services. Additional Services can be purchased by administrators through the New Era Communication user interface or by calling New Era Communication Customer Care. Customer hereby authorizes those users with administrative privileges to: (i) add Services to Customer’s New Era Communication account; and (ii) commit Customer to pay for these Services on a recurring monthly basis. Customer further authorizes New Era Communication to obtain payment of Customer’s then-current statement balance from Customer each month from Customer’s credit card account. Administrators have the ability to authorize an account cancellation and make changes to the account (e.g., service additions, service deletions, assignment of users, updates to credit cards, etc.) but may not: (i) designate himself/herself as the Superuser or (ii) designate any other user as an administrator. The ability to purchase Additional Services may restricted or unavailable for accounts opened via an In-App Purchase.
Customer understands and acknowledges that Activation of the Services may require the use of certain Customer Equipment and/or New Era Communication Equipment.
a) Customer Equipment. Customer represents that it owns or otherwise has the right to use the Customer Equipment in connection with the Services. Customer shall be fully responsible for the installation, maintenance, repair and operation of any Customer Equipment. New Era Communication shall not be responsible for ensuring compatibility of any Customer Equipment with New Era Communication Equipment.
i. New Era Communication may, upon Customer’s request, facilitate the provision of equipment from a third party supplier or resell certain equipment. While New Era Communication recommends some equipment brands and may facilitate Customer’s purchase of some equipment as an accommodation, the original equipment manufacturer and not New Era Communication shall be responsible for any equipment defects, if applicable. New Era Communication will pass through all original equipment manufacturer warranties for the equipment to you. New Era Communication shall have no liability to Customer of any nature regarding such equipment. Please check the equipment manufacturer’s website for warranty, return rules and other terms and conditions applicable to such third party equipment.
ii. Equipment may not be returned to New Era Communication for any reason. ALL EQUIPMENT SALES ARE FINAL. Equipment sold by New Era Communication to Customer may be returned to the manufacturer solely in the event of a defect which arises within the applicable warranty period, provided Customer complies with the terms of this Section and the Return Materials Authorization (“RMA”) policy. Prior to returning the equipment, Customer must contact New Era Communication so that New Era Communication may determine whether a defect exists, to process a warranty claim on behalf of Customer, and to provide an RMA number. You must ship the equipment to the address provided by New Era Communication in accordance with all RMA procedures. You have ten (10) days after receipt of an RMA to ship the equipment. You must pay all shipping fees. Once the equipment is received, the original equipment manufacturer will handle the return in accordance with its applicable warranty policy.
b) New Era Communication Equipment. With respect to New Era Communication Equipment rented, leased, loaned or otherwise provided by New Era Communication for use by Customer, Customer will not: (i) relocate, rearrange, repair or otherwise modify any New Era Communication Equipment without New Era Communication’ prior written consent; or (ii) create or allow any liens or other encumbrances to be placed on any New Era Communication Equipment.
i. Customer will use commercially reasonable efforts to protect and maintain New Era Communication Equipment in a secure location at the Customer Premises within conditions (including room temperature) that are customary and reasonable for such equipment, and shall be fully liable for all costs, charges or expenses associated with damage to or loss, including the replacement cost, of New Era Communication Equipment beyond normal wear and tear.
ii. During the Term of any applicable Service, New Era Communication shall repair or replace defective New Era Communication Equipment rented (or otherwise provided by New Era for use) by Customer. Notwithstanding the foregoing, New Era Communication shall not be obligated to replace New Era Communication Equipment if it is determined by New Era Communication that Customer or another third party is responsible for the defect. Customer will be responsible for the replacement cost.
iii. New Era Communication Equipment (and replacements) may be refurbished equipment.
iv. Upon the termination of this Agreement or any Service and for any other return of New Era Communication Equipment, Customer must contact New Era Communication for a return authorization (RMA), Customer shall securely pack, ship and return to New Era Communication all New Era Communication Equipment in accordance with the RMA instructions to the address designated by New Era Communication. Failure to obtain an RMA and/or to adhere to New Era Communication’ RMA instructions will give rise to Customer’s full liability for the replacement cost of the New Era Communication Equipment. The RMA must be received before the New Era Equipment may be shipped back to New Era Communication. All wires, cables and power supplies must be returned with the New Era Communication Equipment. If the New Era Communication Equipment has not been timely returned to New Era Communication within thirty (30) days after the termination of the applicable Service, New Era Communication shall invoice Customer and/or charge Customer’s method of payment, and Customer shall pay, for the full replacement value of any New Era Communication Equipment. The “replacement cost” shall be the then current list purchase price of the New Era Communication Equipment. New Era Communication Equipment remains the property of New Era Communication at all times and New Era Communication reserves all other rights and remedies, including retrieval. Customer will not withhold access to New Era Communication to retrieve unreturned equipment, and in such case, New Era may charge Customer’s selected method of payment, and Customer will pay and be liable for up to a one thousand dollar ($1,000.00) equipment return fee per Customer location (which is a non-exclusive remedy to obtaining the replacement cost chargeable to Customer as applicable.)
a) Non-Exclusive License. If Software is provided by New Era Communication in connection with Services, New Era Communication grants to Customer a personal, limited, revocable, non-exclusive, non-assignable and non-transferable license to use the Software, in object code form only, solely for the purpose of using the Service(s). This license will permit such use by Customer and any of its employees or contractors (but only within the scope of their employment or services with Customer) authorized by Customer to use the Service, provided that Customer shall be responsible for all uses of the Service as provided in this Agreement. This license commences upon New Era Communication’s acceptance of the Sales Order for the Service and terminates immediately upon the expiration or termination of this Agreement for any reason. Customer shall return or destroy all Software and any related written material, together with any copies, in its possession or under its control promptly upon the expiration or termination of this Agreement for any reason. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this license is void and may result in termination by New Era Communication of this Agreement and the license. No other licenses or rights to the Software are granted or implied.
b) Upgrades and Modifications. New Era Communication reserves the right to upgrade the Software or discontinue support for earlier versions of the Software at any time.
c) End User Licenses. Certain Software New Era Communication provides to Customer may contain third-party software (“Third-Party Software”), including open source software. Use of such Third-Party Software may be governed by separate copyright notices and license provisions, which may be found or identified in documentation or on other media delivered with the Third-Party Software and which are incorporated by reference into this license. Notwithstanding any other terms in this Section 9, such provisions shall govern the use of Third-Party Software. Customer agrees to comply with the terms and conditions of all end user license agreements accompanying any Software (including Third-Party Software) or plug-ins to such Software distributed in connection with the Service. All end user licenses shall immediately terminate on the date that the Service expires or this Agreement is terminated.
d) Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software. The Service(s), New Era Communication Equipment and Software and all information, documents and materials on New Era Communication’ website(s) are protected by trademark, copyright, patent and other intellectual property laws and international treaty provisions. All website content, corporate names, service marks, trademarks, trade names, logos and domain names of New Era Communication are and shall remain the exclusive property of New Era Communication or its Affiliates and nothing in this Agreement shall grant Customer the right or license to use any of the foregoing. Customer agrees that the New Era Communication Equipment is exclusively for use in connection with the Service and that New Era Communication will not provide any passwords, codes or other information or assistance that would enable Customer to use the New Era Communication Equipment for any other purpose. If Customer decides to use the Service through an interface device not provided by New Era Communication (which New Era Communication reserves the right to prohibit in particular cases or generally), Customer warrants and represents that it possesses all required rights, including software and/or firmware licenses, to use that interface device with the Service and Customer will indemnify, defend and hold harmless New Era Communication from and against any and all liability arising out of Customer’s use of such interface device with the Service. Customer may not undertake, cause, permit or authorize the modification, creation of derivative works, or translate, reverse compile, disassemble, hack or reverse engineer, or otherwise attempt to derive the source code from the binary code of the Software.
e) Software Changes. Customer agrees to implement promptly all fixes, updates, upgrades and replacements of Software and Third Party Software as directed by New Era Communication or by the third party providers of Third-Party Software. New Era Communication shall not be liable for inoperability of the Services due to failure of Customer to timely implement the required changes.
10. Service Term and Service Cancellation.
a) Service Term. The Services are provided on a monthly basis unless another fixed minimum term is agreed upon in the Sales Order and/or other agreement. The Term will begin on the Activation Date. The Service Term shall continue unless and until Customer provides notice of cancellation of the Services in accordance with this Section 10 or New Era Communication terminates the Services in accordance with the terms set forth herein. Notwithstanding notice by a Party to terminate this Agreement, Services will remain in effect through the effective date of termination and the terms and conditions of this Agreement and the applicable Sales Order(s) will continue to apply to such Services. Upon termination of the applicable Service Term, New Era Communication will not be obligated to furnish the Services to Customer.
b) Notice of Cancellation. Customer acknowledges that the Services automatically renew each month unless Customer provides cancellation notice to New Era Communication at least seventy-two (72) hours prior to a scheduled billing date (in accordance with the terms of Section 10 herein). If Customer provides notice of cancellation (with respect to any or all of the Services) at least seventy-two (72) hours prior to the next scheduled billing date, then Customer shall not be billed for the next billing cycle. If Customer provides notice of cancellation less than seventy-two hours prior to the next scheduled billing date, then: (i) the cancellation shall be effective within seventy-two (72) hours after Customer provides cancellation notification to New Era Communication; and (ii) Customer shall be billed for the next billing cycle in full. New Era Communication does not refund, in whole or in part, or issue credits for any charges already billed to Customer’s account. In the event Customer subscribed for a minimum commitment or contract period for the Services being cancelled, Customer is responsible for all or certain of the applicable Service charges and associated Taxes and Fees for the entire remaining minimum commitment or contract period pursuant to the terms of the commitment agreed to by Customer. When Customer cancels Customer’s Service, all charges (including Taxes and Fees) payable to New Era, including any early termination fees, will immediately accelerate and Customer: (a) authorizes New Era Communication to immediately assess all such amounts to Customer’s credit card or ACH account on file; or (b) upon demand by New Era, provide a certified check for all Service Fees.
c) Cancellation Process. The Agreement may be cancelled by Customer only through the Superuser or an administrator by contacting New Era Communication Customer Care by telephone during normal business hours. (If Customer contacts a Marketing Partner or Authorized Distributor to cancel the Services or any portion thereof, that Marketing Partner or Authorized Distributor will collect the pertinent information and provide the information to New Era Communication to effect cancellation in accordance with Customer’s instructions.) CUSTOMER MAY CANCEL SERVICES ONLY THROUGH THIS METHOD. New Era Communication WILL NOT ACCEPT CANCELLATION VIA EMAIL, FAX, SMS OR OTHER ELECTRONIC METHODS. FAILURE TO CANCEL SERVICES IN ACCORDANCE WITH THIS SECTION WILL RESULT IN ONGOING SERVICE CHARGES, FEES AND TAXES. New Era Communication will provide Customer with email confirmation of the Services cancelled. If Customer does not receive a confirmation of Service cancellation, Customer must notify New Era Communication by sending an email to customercare@New Erabusiness.com or contact New Era Communication Customer Care by telephone.
Customer may also cancel individual Services on Customer’s account at any time by contacting New Era Communication Customer Care during normal business hours. Customer understands and acknowledges that the cancellation will be effective on the date Customer specifies, but in no event earlier than seventy-two (72) hours following cancellation notification to New Era Communication. Moreover, Customer acknowledges that New Era Communication will not refund, in whole or in part, or issue credits for any charges already billed to Customer’s account.
d) Additional Termination Obligations. Upon termination, expiration or cancellation of the Services, Customer shall discontinue use of any New Era Communication Services, including New Era Communication-provided telephone numbers, log-ins, voicemail access numbers or any web portal sites assigned to Customer by New Era Communication.
e) Ancillary Services. In the event Customer subscribes to ancillary services provided by New Era Communication (including such things as voicemail recording, call recording, etc.), cancellation of the Services for any reason shall also result in the cancellation of such ancillary services. In the event New Era Communication is providing voicemail recording, call recording, or other such ancillary service, all of Customer’s data, including all recordings, will be deleted on or after the effective date of termination or cancellation. In the event that an end user account is cancelled or terminated (whether by the Customer or due to termination of the Services), the user data associated with such end user account and related ancillary services will be deleted. Such data will be available subject to New Era Communication’ retention policies and could be as soon as the effective date of cancellation or termination.
f) In-App Purchases. Sections 10(a) through (d) above shall not apply for Services purchased via In-App Purchase. Services purchased via In-App Purchase are provided on a monthly basis and the Term will begin on the Activation Date. The terms of service for the app store from which Customer downloaded the mobile application shall govern renewals, refunds and cancellations of the Services, and such terms are hereby incorporated by reference.
11. Billing, Credit, Deposits and Payment.
a) Billing and Payment Processing. Customer agrees to pay New Era Communication the recurring monthly service charges, Taxes and Fees, Shipping and Handling, set-up charges and usage charges, if applicable, for Customer’s use of the Services. New Era Communication may also charge, and Customer shall pay all recurring and nonrecurring costs, charges and expenses incurred by New Era Communication for Customer’s benefit in connection with installation, delivery or implementation of the Services (collectively, the “Special Install Costs”). For clarification and by way of example, standard installation does not include (and the following may comprise a portion of any Special Install Costs) core drilling, wiring extensions for excessive distances, installation of new conduit runs, installation of water proof shielding, installation of aerial circuit runs, or removal of hazard materials, as determined by New Era Communication at its sole discretion. Billing will commence on the Activation Date. Customer agrees to provide New Era Communication with a valid email address, billing address, and a valid payment method prior to activation of Service. Customer shall advise New Era Communication immediately if Customer’s Company Contact or Superuser email addresses change and/or if the payment method changes or expires. Failure to comply may result in the immediate suspension or termination of Services.
i. Payments via Credit Card or ACH. Until Customer cancels the Services in accordance with the requirements of Section 10 herein, Customer authorizes New Era Communication to: (a) automatically bill the credit/debit card Customer provided on the same day of each month; or (b) automatically debit (charge) Customer’s checking account electronically via ACH on the same day of each month. “ACH” shall mean the automated clearing house, which is the nationwide network of banking institutions that process electronic payments automatically between bank accounts. Customer agrees that New Era Communication may receive updated information about Customer’s account from the financial institution issuing Customer’s credit/ debit card. Customer’s payment method is also subject to charge for applicable fees and charges arising from a cancellation of Service or required New Era Communication Equipment returns.
ii. Alternative Payment Methods. Under certain circumstances, and except for pre-paid cards, New Era Communication may agree to accept alternative payment methods. In such case, Customer shall agree to New Era Communication’ reasonable requirements, as well as certain fees, related to the aforementioned pre-approved, alternative payment methods. In such case, Customer authorizes New Era Communication to either: (a) use information from the check to make a one-time electronic transfer from Customer’s account as soon as the Customer submits the payment; or (b) to process the check as a check transaction, in which case Customer may not receive the check back from Customer’s financial institution. In the event that Customer presents a check to New Era Communication for payment that is returned by Customer’s bank for non-sufficient funds, New Era Communication may suspend or terminate the account. Customer shall pay a reconnect fee to re-activate service as set forth in Section 11. iv. Late payments and returned checks are subject to late payment fees and returned check fees, respectively.
iii. Security Deposit. New Era Communication reserves the right any time during the Service Term, in its sole discretion, to require Customer to maintain a non-interest bearing deposit, to be held on account, in an amount determined in New Era Communication’ discretion based on customer’s actual or anticipated billings to include usage charges. A deposit may be required prior to the next billing date to continue the Services (e.g., with instances of high international calling). The deposit will be adjusted as Services and usage levels increase or decline and will be refunded, less any past due balance or other amounts due by Customer, at the end of the Service Term. In addition, in the event that Customer’s use of the Services involves usage-based charges that in New Era Communication opinion are substantial, New Era Communication may, in its sole discretion, process charges against Customer’s payment method prior to Customer’s regular monthly billing cycle date and/or require a non-interest bearing deposit to secure Customer’s payment obligations under this Agreement. All deposits must be paid promptly on demand and will be held on account during the term of this Agreement. Customer authorizes New Era Communication to offset any amounts due to New Era Communication against the deposit.
iv. Payment of Invoices. Invoices are delivered monthly. Except for usage based fees, all fees are due in advance on the first day of each billing period. Fees may include monthly recurring charges (“Service Fees”) and other non-recurring charges including but not limited to, activation fees, porting fees, early termination fees (“ETF”), intellectual property recovery fees (“RCIP”), and government mandated pass through fees such as, but not limited to, Universal Service Fees (“USF”), e911 fees and regulatory compliance (collectively, “Fees”). All usage based charges (including charges for calls to Alaska, Hawaii and international calls) are due and payable in arrears on the first day of each billing period following the month they were incurred. Customer agrees to pay for all equipment as the equipment order is processed and set up fees upon acceptance of the Sales Order. Customer agrees to pay for the first month of Services upon Activation of the Services. All payments, including payments paid in advance, are completely non-refundable. Failure to pay in full may result in immediate account suspension and New Era Communication shall have no liability for such suspension under any circumstances. Accounts will be reactivated, at New Era Communication’ sole discretion, after the account balance is paid in full and a Twenty-Five Dollar ($25.00) reconnect fee is paid. Past due amounts bear interest at the lower of 1.5% per month or the maximum rate allowed by law. All Fees and any other amounts due to New Era Communication may, at Customer’s direction, be charged to Customer’s Visa, MasterCard, American Express or valid debit card, and/or electronically debited to Customer’s bank account, in which case Customer hereby authorizes New Era Communication to charge Customer’s credit/debit card and/or to electronically debit Customer’s bank account for all such fees, charges (including termination-related charges), taxes and payment transaction processing costs. Customer acknowledges that pre-paid credit cards are not accepted and agrees not to provide pre-paid credit cards as a payment method.
v. Suspension of Services. Failure to pay in full may result in immediate suspension of Services and New Era Communication shall have no liability for such suspension under any circumstances. During any period of suspension, Services and features and functions of the Services (including, but not limited to call recording service and any other service New Era Communication is providing) will be unavailable to Customer until the account balance is paid in full. Customer will be unable to record calls or access any data or recordings that have previously been stored by New Era Communication.
vi. Disputes. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount and submit written notice of the disputed amount (with details of the nature of the dispute and the Services and invoice(s) disputed) to the address below on or before the due date. In the event Customer intends to dispute amounts already paid in full, Customer must submit notice of such dispute in writing within ninety (90) days from the date of the invoice (such date at the end of such period being the “Dispute Due Date”). After receipt of notice of the dispute, New Era Communication shall undertake an investigation of the dispute, so long as Customer has not waived its rights pursuant to this paragraph to make the dispute. At the conclusion of the investigation, New Era Communication will notify Customer of any amount determined by New Era Communication to be correctly charged and such amount will become immediately due and payable together with interest from the date originally due. If the dispute notice is not sent by the Dispute Due Date, Customer waives all rights to dispute the applicable charges, unless otherwise provided by law. All billing disputes must be sent to:
New Era Communication
Billing Department (Disputes)
23 Main Street
Holmdel, NJ 07733
With a copy to:
Office of the Chief Legal Officer
New Era Communication
23 Main Street
Holmdel, NJ 07733
If Customer does not deliver full payment for all undisputed billed charges by the due date, New Era Communication may restrict, suspend or terminate use of the Services or New Era Communication Equipment. Customer shall also reimburse New Era Communication for all reasonable attorneys’ fees and other costs incurred by New Era Communication relating to collecting delinquent payments or Customer’s non-payment breach of this Agreement. New Era Communication may also apply any deposits or other payments made by Customer. If New Era Communication applies any portion of a security deposit, Customer shall, within five (5) days following written notice thereof from New Era Communication, replenish the security deposit by the amount so applied by New Era Communication. If New Era Communication restricts, suspends or terminates Customer’s Services, New Era Communication may, at its sole option, choose to restore Customer’s Services prior to the payment of all charges due. Such restoration shall not be construed as a waiver of New Era Communication’ right to (i) receive full payment for all charges due or (ii) again restrict, suspend or terminate the Services at any time for non-payment of any unpaid charges. The failure of New Era Communication to restrict, suspend or terminate the Services for non-payment of any charges shall not operate as a waiver or estoppel to restrict, suspend or terminate Services of such account for non-payment of current or future charges.
vii. Credit Approval. Customer agrees to supply New Era Communication with the information necessary to verify Customer’s credit rating prior to providing Customer with access to the Services or Equipment. New Era Communication may also, during the Service Term of this Agreement, update its information regarding Customer’s credit rating without notice to or permission from Customer. Customer authorizes New Era Communication to make inquiries and to receive information about Customer’s credit experience from others, enter this information in Customer’s file, and disclose such information concerning Customer to appropriate third parties for reasonable business purposes. New Era Communication reserves the right any time during the Service Term, in its sole discretion, to refuse to provide Service based upon lack of Customer’s creditworthiness, upon the expiration or termination of this Agreement or other form of secure payment authorization, such as auto-payment.
viii. Additional, Unrelated Charges. Customer acknowledges that Customer may incur charges while using the Service in addition to those billed by New Era Communication. For example, Customer may incur charges as a result of accessing certain on-line services or purchasing or subscribing to certain other offerings. Customer agrees that all such charges, including all applicable taxes, are the sole responsibility of Customer, and Customer covenants to timely pay all such charges.
ix. In-App Purchases. Sections 11 i., ii., iii., v., and vi. above shall not apply for Services purchased via In-App Purchase. The terms of service for the app store from which Customer downloaded the mobile application shall govern payment for the Services, and such terms are hereby incorporated by reference. Failure to comply with such terms may result in the immediate suspension or termination of Services. Due to payment notification requirements of certain app store platforms, Customer may be required to open their mobile app to enable automatic delivery of their monthly subscription payment notification to New Era Communication. If Customer fails to open (or if Customer deletes) their mobile app within fourteen (14) days after the end of the prior monthly subscription period, New Era Communication may not receive payment notification despite Customer’s account having been charged by the app store platform. If New Era Communication does not receive payment notification within fourteen (14) days after the end of the prior monthly subscription period for any reason, Customer’s account may be suspended or terminated.
12. Taxes and Fees. Prices for Services do not include, and Customer is responsible for, all Taxes and Fees. Customer may also be charged taxes by a Marketing Partner or Authorized Distributor for non-New Era Communication products and services sold or licensed by that Marketing Partner or Authorized Distributor in connection with Customer’s order for New Era Communication Services. In addition, a regulatory recovery fee for every phone number assigned to Customer’s account, including toll free and virtual numbers, will be charged monthly to offset costs incurred by New Era Communication in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and related legal and billing expenses. This recovery fee may also include recovery of costs for legal, intellectual property, cybersecurity, compliance and other related expenses, including those related to number portability, customer privacy protection and anti-fraud protection. This fee is not a tax or charge required or assessed by any government and may be recovered by New Era Communication through imposition of a surcharge on cost of the Service. Customer may present New Era Communication with an exemption certificate eliminating Customer’s and New Era Communication’s liability to pay certain Taxes and Fees. If any amounts paid for the Services are refunded by New Era Communication, Marketing Partner or Authorized Distributor, applicable taxes may not be refundable. The foregoing shall not apply to In-App Purchases. The terms of service for the app store from which Customer downloaded the mobile application shall govern taxes and fees for the Services, if any, and such terms are hereby incorporated by reference.
13. Regulatory and Legal Changes. New Era Communication may discontinue, limit, modify any Service, or impose additional requirements to the provision of any Service, as may be reasonably required to comply with any Applicable Laws. If changes in Applicable Laws materially and adversely affect delivery of Service (including the economic viability thereof) or would impose further compliance requirements, then New Era Communication will provide notice to Customer (in accordance with Section 39(e)) to the extent that said changes impact Customer’s obligations and details of regulatory changes.
14. Metered Usage. There are certain calls which will incur additional usage charges, such as calls to Alaska, Hawaii and international calls. In addition, certain features such as call forwarding from auto attendants to an outside number, calls to a queue, and each line on a conference bridge will incur charges at the then current rate established by New Era Communication. Metered usage is billed in full-minute increments, and actual usage is rounded up to the next full-minute increment at the end of each call for billing purposes. Calls to Alaska, Hawaii and international calls may not be made available for certain types of Services.
15. Bundled Usage. New Era Communication or its Marketing Partners or Authorized Distributors may offer bundled plans which include a defined combination of services and which may offer a specified number of minutes or unlimited usage (subject to Sections 19 and 20 herein). Bundled plans may also include usage based charges that differ from other New Era Communication, Marketing Partner or Authorized Distributor plans. In some bundled plans, the number of minutes used may be aggregated into a pool of minutes available to extensions on an account with excess usage charges applying for any usage above the allotted aggregate minutes at a specified rate.
16. Unlimited Calling & Unlimited Voice Services. For unlimited calling plans, unlimited calling applies only to calls made within the continental United States and Canada. Calls to Alaska, Hawaii and all non-Canadian international calls are subject to additional charges. Unlimited voice services are provided solely for live dialog between two individuals. Unlimited voice services may not be used for conference calling, call forwarding, monitoring services, data transmissions, transmission of broadcasts, transmission of recorded material, or other connections which do not consist of substantially uninterrupted live dialog between individuals. If New Era Communication finds that Customer is using an unlimited voice service offering for other than live dialog between two individuals, New Era Communication may, at its option, terminate Customer’s service or change Customer’s plan. New Era Communication may provide commercially reasonable written or email notice that it intends to take any of the above actions. Notwithstanding the foregoing, Customer shall be entitled to use New Era Communication conference calling services such as three way calling and New Era Communication-provided conference calling bridges. See Section 19 below for additional limitations pertaining to Customer’s use of unlimited voice services.
17. Ancillary Services.
a) Caller name identification (i.e., caller ID with name) Services provided by New Era Communication are based on availability of such Services from New Era Communication’ underlying providers. New Era Communication does not guarantee that such Services are available for all numbers in all serving areas.
b) Each voicemail message recorded by New Era Communication shall be retained for a minimum of three (3) months from the date the message was recorded. New Era Communication retains the right to purge all voicemail messages after this minimum retention period.
c) Certain Services provided by New Era Communication shall be subject to separate end-user license agreements (“EULAs”). The terms of such EULAs shall be binding upon the parties to this Agreement. If any such EULAs, or any provisions in such EULAs, are held to be unenforceable for any reason, the terms of this Agreement shall apply with respect to the supply of that Service.
d) New Era Communication may introduce new ancillary Services to new and existing customers. Such ancillary Services may sometimes be offered on a trial basis for a specified period of time during which fees may or may not apply to Customer. In some cases, the terms of a trial may involve an automatic re-enrollment at the end of the trial unless the customer opts out of the trial and/or cancels the service during the term of the trial. In no event shall New Era Communication impose Service Fees on Customer for ancillary services without providing Customer the opportunity to opt-out of the trial and/or to cancel the ancillary Service during a no-cost trial period.
e) Premier Support Services. New Era Communication offers additional training and support packages for purchase. The details associated with those support packages can be found here.
18. Use of the Services. Customer shall use the Services only in a manner that fully complies with all Applicable Laws, as well as the terms and conditions of this Agreement. Use of the New Era Equipment, the Services or other action that is in violation of this Section 18 or Section 19 or that causes a disruption in the New Era Communication network integrity, or in New Era’s determination threatens or compromises the security of New Era Communication, its vendors, its other customers or the Services whether directly or indirectly, is strictly prohibited and permits New Era Communication to suspend or terminate the Services without prior notice at the sole discretion of New Era Communication and further permits New Era Communication to disclose any relevant information, including Customer Confidential Information, to necessary authorities or third parties. New Era Communication shall have the right, in its sole, but reasonably exercised discretion, not to accept, transmit or deliver any messages or content that it reasonably believes contains inappropriate content or that is, or could reasonably become, the subject of any legal, regulatory, or other governmental proceeding or process, including a law enforcement proceeding, process, or inquiry.
19. Service Use Restrictions.
a) Commercial Use. Customer agrees and represents that Customer is purchasing the Services and/or the equipment for Customer’s internal use only, and Customer shall not resell, transfer or make a change to the Services without the advance express written permission of New Era Communication. Customer shall not in any way interfere with other users, the services or equipment of the network or use the Services in any way for (or as part of) any commercial service or application. Customer may not attempt to, in conjunction with any device, software program or service, circumvent technological measures employed to control access to the Service.
b) Fair Use. New Era Communication’ business service plans and features are for normal, reasonable business use and consistent with the types and levels of usage by typical customers on the same business calling plan. “Typical” refers to the calling patterns of at least 95% of New Era Communication’ business customers on the same business calling plan. Certain calling and messaging plans, including unlimited calling and messaging plans, are designed for normal commercial use and are not intended to represent typical usage by unique organizations such as call centers, resellers, fax messaging services, telemarketing firms, or for use without live dialog, such as transcription services, intercom or monitoring services. Unauthorized or excessive use beyond that normally experienced by typical, similarly situated business customers may cause extreme network capacity and congestion issues and interfere with New Era’s network and the third party networks with which New Era connects for call initiation and completion services. Any use of the Services or any other action that causes a disruption in the network integrity of New Era services or its vendors, whether directly or indirectly, is strictly prohibited and may result in termination of the Services.
i. Evaluation of Usage. New Era evaluates Customer usage in comparison to typical levels of permissible usage engaged in by New Era’s customers (business use under business service plans or affiliate use under co-branded business service offers or business plans). Co-branded use is defined as New Era’s service that is provided by a third party partner under that third party partner’s marketing brand, with or without reference to New Era. The following is a non-exhaustive list of impermissible uses under New Era’s business plans and is considered outside of normal use, whether obtained directly from New Era, an authorized reseller, or from a co-branded New Era partner:
Resale to others;
Auto-dialing or fax/voice blasts;
Without live dialog, including use as a monitor or for transcription purposes;
Continuous or extensive call forwarding;
Fax blasting; and
Telemarketing involving practices that are in violation of any law or regulation or any other activity that would be inconsistent with small business usage.
ii. Review of Unlimited Usage. New Era reserves the right to review usage of unlimited usage plans to ensure that customers are not abusing such plans. Customer agrees to use unlimited voice plans for normal voice and/or text message related communications with aggregate usage that falls within the range of similarly situated business customers. Use of unlimited “paperless facsimile” service must also fall within the normal range of similarly situated business customers and shall be considered abusive if usage exceeds 500 transmitted pages sent or received per month. In addition, Customer agrees that Customer will not employ methods or use devices to take advantage of unlimited plans by using the Services excessively or for means not intended by New Era. New Era may terminate service immediately if it determines, in its sole discretion, Customer is abusing an unlimited minute plan. New Era deems usage that substantially exceeds the average volume of its other unlimited usage plan customers as abusive. Customer agrees that New Era has the right to terminate Customer’s service and/or charge Customer additional fees if Customer’s usage is considered abusive in the sole discretion of New Era.
c) Excessive Usage. If it is determined that Customer’s usage is abusive, Customer agrees to pay a per minute, per text message, or per page fee for use in excess of typical levels at the then current rate established by New Era, of at least $.06 per minute for voice calls and/or $.06 per facsimile page. At New Era’s sole option, Customer’s service may be immediately terminated. THIS OVERAGE FEE APPLIES TO ALL PLANS INCLUDING THE UNLIMITED PLANS. A Customer’s aggregate usage may be considered outside of normal use if involves excessive:
Number of calls made to a conference calling service during a month;
Number of calls terminated and re-initiated consecutively, which, in the aggregate, result in excessive call lengths during a specific time frame;
Number of text messages;
Number of inbound domestic toll free calling patterns during a month; or
Other abnormal calling patterns indicative of an attempt to evade enforcement of this Reasonable Use Policy
Based on such a combination, New Era may determine that abnormal, unreasonable or impermissible usage is occurring when compared to typical customers on the same calling plan, and may take appropriate steps described below to enforce this Section 19 and 20, as well as the Terms of Service. If, in New Era’s sole discretion, New Era affords Customer the opportunity to correct Customer’s abnormal usage patterns and Customer fail to immediately conform to normal use, New Era may exercise its right to transfer Customer’s service to a more appropriate plan, charge applicable rates for that plan, implement other limitations or suspend or terminate Customer’s service with or without notice.
d) Prohibited Use of the Services. Customer may not use any automated means to manipulate our Service or use our Service to violate any law, rule, regulation or any third parties’ intellectual property or personal rights. By way of example, Customer shall not use our Service or our device to:
Impersonate another person;
Send bulk unsolicited messages;
Use robots, data mining techniques or other automated devices or programs to catalog,
Download, store or otherwise reproduce or distribute information from our Service or use any automated means to manipulate our Service;
Violate any law, rule or regulation;
Violate any third party’s intellectual property or personal rights; or
Exceed Customer’s permitted access to our Service.
New Era may remove or block all communications if New Era suspects a violation of this Agreement, or if New Era thinks it necessary in order to protect New Era’s Service, or New Era, its parent, affiliates, directors, officers, agents, and employees from harm.
e) For Lawful and Appropriate Purposes Only; New Era’s Rights. Customer may not use our Service or devices in any way that is illegal, improper or inappropriate. The following is a non-exhaustive list of examples of illegal, improper, or inappropriate uses of our Service and or devices:
Invasion of another’s privacy or any similar behavior
20. Fraudulent Use of Service. Customer is solely responsible for any and all activities that occur under Customer’s account. Customer shall not transfer its login credentials accessing the Services to any third party. Customer agrees to notify New Era Communication if it becomes aware of any prohibited, fraudulent or unauthorized use of the Services, Customer’s account, New Era Communication Equipment or Customer Equipment. New Era shall not be liable for any damages whatsoever resulting from any prohibited, fraudulent or unauthorized use of the Services, Customer’s account, New Era Communication Equipment or Customer Equipment, and Customer shall bear the risk of loss and assume all liability arising from any such prohibited, unauthorized or fraudulent usage, except to the extent such usage arose solely from New Era Communication’s gross negligence or willful misconduct. Any such prohibited, unauthorized or fraudulent use shall be deemed a material breach of the Agreement by Customer. Customer is responsible for implementing generally accepted security measures to protect all access points. Customer is responsible to secure all credentials used to access the Services, including credentials used by telephones or softphones and credentials used by end users or administrators, as well as the media access control (MAC address of telephones used by Customer. Customer is also solely responsible for terminating credentials and access for any end users no longer authorized by Customer to use the Services. Customer acknowledges that placing telephones on a publicly accessible internet protocol address or a publicly accessible network will subject the Customer to a higher level of risk for fraudulent activity. Customer shall not be excused from paying for Services or any portion thereof on the basis that fraudulent calls, and any charges associated with such calls (e.g. long distance charges), comprised a corresponding portion of the Services. In the event New Era Communication discovers or has reason to believe (i) suspicious or fraudulent calls being made, (ii) calling patterns or volumes materially outside of Customer’s regular usage patterns or (iii) other usage in violation of the AUP, Customer consents to New Era Communication taking actions it deems reasonably necessary (including temporary suspension of the affected Service or blocking or limiting access to particular calling numbers or geographic areas), without notice to Customer, to prevent such calls from taking place. Customer acknowledges and agrees that New Era Communication: (a) is under no obligation to investigate the authenticity of calls charged to Customer’s account, (b) is under no obligation to take action to prevent such calls from being made, and (c) is not liable for any fraudulent calls processed by New Era Communication and billed to Customer’s account.
21. No Resale. Customer represents and warrants that it will be the ultimate end user of the Service. Customer shall not in any way resell, license, permit nor allow any third party to use the Services without receiving New Era Communication’ prior written consent.
23. Required Maintenance. New Era Communication reserves the right to perform repair and maintenance or to upgrade, update or enhance (collectively, the “Maintenance”) its network, infrastructure, website(s), Services and/or New Era Communication Equipment with or without prior notice or liability to Customer, even if the Maintenance causes a partial or full disruption of the Services; provided, however, and subject to New Era Communication’s business needs, New Era Communication shall use commercially reasonable efforts to perform the Maintenance in a manner so as to avoid unduly interfering with Customer’s use of the Services, including by providing reasonable commercial notice where feasible.
24. Voice-to-Text and Text-to-Voice Limitations. Certain New Era Communication Services may provide a function that allows voicemails to be converted to text and vice-versa. Customer understands and agrees that New Era Communication’s voice-to-text (“VTT”) and text-to-voice (“TTV”) features may not accurately transcribe voicemails or articulate text messages, respectively. Customer is solely responsible for checking the original message and verifying the accuracy of the message when using any VTT or TTV features. New Era Communication expressly disclaims all liability with respect to the conversion of voicemails to text or vice-versa.
25. Suggestions and Feedback. In the event that Customer provides New Era Communication with suggestions, enhancement requests, recommendations, proposals, documents, or other feedback with respect to the Services or Software (collectively, “Suggestions”), Customer grants New Era Communication and its Affiliates a royalty-free, worldwide, irrevocable, perpetual license to use, modify, and distribute such Suggestions in connection with efforts to improve, enhance or modify the Services or Software without compensation to Customer or attribution of any kind.
26. Changes to Services. New Era Communication reserves the right to remove, add, modify or reduce features and functions of the Services, and to provide fixes, updates and upgrades to the Services without notification to Customer, provided that material changes shall be noticed by New Era Communication LLC on its website or communicated to Customer pursuant to the methods in Section 3.
27. Default and Remedies.
a) Customer Default. If Customer either (a) fails to make any payment when due and such failure continues for five (5) business days after written notice from New Era Communication, or (b) fails to observe or perform any other material term of this Agreement and such failure continues for thirty (30) days after written notice from New Era Communication, then New Era Communication may elect to: (i) terminate this Agreement and/or any Sales Order, in whole or in part; (ii) immediately suspend Customer’s Service, in whole or in part; and/or (iii) pursue all remedies New Era Communication may have at law or in equity.
b) Suspension of Services. Notwithstanding any other provision of this Agreement, New Era Communication may suspend Customer’s right to access or use any portion or all of the Service immediately and without liability to Customer in any of the following circumstances: (i) Customer’s use of the Service violates and Applicable Laws or the RUP; (ii) New Era Communication is legally required to suspend or terminate Service; (iii) Customer’s use of the Service poses a security risk to the Service or any third party or may subject New Era Communication or any third party to liability; (iv) the occurrence or threat of any other event or circumstance for which New Era Communication reasonably believes that suspension of Service is necessary to protect the New Era Communication (or other third-party) network, systems or customers; or (v) Customer’s failure to make payment (as set forth in Section 11).
c) New Era Communication Default. If New Era Communication fails to observe or perform any material term of this Agreement (other than non-performance under or failure to comply with a service level agreement between the parties which contains exclusive remedies therein), Customer may terminate any applicable Sales Order only after Customer has delivered written notice of such failure to New Era Communication, such notice to contain reasonable detail describing any breach, and New Era Communication has failed to remedy such failure and/or prevent its recurrence within thirty (30) business days of its receipt of Customer’s written notice.
28. RIGHT TO TERMINATE OR MODIFY SERVICES. New Era Communication may modify the Services, including but not limited to the price, content or nature of the Services, upon written- notice to Customer. Customer’s continued use of the Services constitutes Customer’s agreement with the modified Services.
29. Warranty Disclaimer. New Era Communication PROVIDES THE SERVICES, EQUIPMENT AND SOFTWARE ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND (EXCEPT FOR ANY THIRD PARTY MANUFACTURER WARRANTIES THAT MAY BE APPLICABLE TO EQUIPMENT PURCHASED BY CUSTOMER FROM New Era Communication), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. New Era Communication MAKES NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER REQUIREMENTS, SPECIFICATIONS, EXPECTATIONS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED, THAT THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER CONTENT, CUSTOMER APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY New Era. CUSTOMER ACKNOWLEDGES THAT New Era DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. New Era Communication IS NOT RESPONSIBLE FOR MESSAGES OR INFORMATION LOST OR MISDIRECTED DUE TO INTERRUPTIONS OR FLUCTUATIONS IN THE SERVICES OR THE INTERNET IN GENERAL, OR FOR ANY ISSUES RELATED TO THE PERFORMANCE, USE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER’S USE, CUSTOMER CONTENT, CUSTOMER APPLICATIONS, OR THIRD PARTY CONTENT. New Era DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS OR USEFULNESS OF THIRD PARTY CONTENT. TO THE EXTENT THAT New Era Communication CANNOT DISCLAIM ANY WARRANTIES IN CERTAIN JURISDICTIONS, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. ALTHOUGH REASONABLE EFFORTS ARE MADE TO PROVIDE SECURITY FOR VOICEMAILS AND FAX TRANSMISSIONS, New Era Communication MAKES NO GUARANTEES OR WARRANTIES OF SECURITY. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT ENABLED TO FUNCTION OUTDIALING SYSTEMS INCLUDING HOME OR OFFICE SECURITY SYSTEMS, TTY EQUIPMENT, MEDICAL MONITORING EQUIPMENT OR SATELLITE TELEVISION SYSTEMS. New Era Communication WILL NOT BE LIABLE FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT DESIGNED, INTENDED OR RECOMMENDED AS A MEANS BY WHICH TO STORE OR TRANSMIT “PROTECTED HEALTH INFORMATION” (“PHI’) AS DEFINED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 AND RELATED OR SIMILAR LAWS (COLLECTIVELY, “HIPAA”). EXCEPT AS OTHERWISE AGREED IN A WRITING SIGNED BY New Era Communication, New Era Communication MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES OR THEIR USE WILL COMPLY WITH HIPAA OR WILL RENDER ANY PARTY COMPLIANT WITH HIPAA, AND IS RELEASED FROM ANY LIABILITY FOR ITS ACTS OR OMISSIONS RELATING TO HIPAA.
30. Limitation of Liability. NEITHER New Era Communication, NOR ITS AFFILIATES, VENDORS, SUPPLIERS, DISTRIBUTORS, CHANNEL AND OTHER MARKETING PARTNERS OR OTHER REPRESENTATIVES SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, REPLACEMENT COSTS, OR ANY LOSS OF REVENUE OR PROFITS, CONTENT, DATA, OR DATA USE, EVEN IF New Era Communication HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE REASONABLY BEEN FORESEEN BY New Era Communication. New Era Communication’ AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO New Era Communication UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM SUBJECT TO THIS SECTION 30.THE PARTIES ACKNOWLEDGE AND ACCEPT THE REASONABLENESS OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 30.
31. Indemnification. Customer agrees to defend, indemnify and hold harmless New Era Communication from and against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with claims made or brought against New Era Communication by a third party arising from or relating to: (i) any act, error, omission, fault, negligence, or misconduct of Customer or any user of the Services, Software or New Era Communication Equipment, whether authorized or unauthorized by Customer; (ii) Customer’s breach of any obligation, warranty, representation, or covenant of this Agreement or the RUP; (iii) any claim by any employee or invitee of Customer or user other than a claim based on the gross negligence or willful misconduct of New Era Communication; (iv) any claim by any customer of Customer, end user or other third party relating to, or arising from, Customer Data or Customer’s use of the Services, Software or New Era Communication Equipment; or (v) violation of any Applicable Laws by Customer or any Customer employee, contractor or agent.
a) “Confidential Information” means all nonpublic information relating to a Party or its Affiliates that (i) if provided in writing, is marked or labeled as confidential or proprietary, or (ii) if provided verbally, is designated as confidential at the time of disclosure, or (iii) even if not so marked, labeled or identified, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation, all nonpublic information relating to (i) a Party’s or its Affiliates’ technology, customers, employees, business plans, agreements, finances and other business affairs, (ii) the New Era Communication network or service delivery platform, and (iii) the terms of any Sales Order. Confidential Information does not include any information that (i) has become publicly available without breach of this Agreement, (ii) was known to the Party receiving Confidential Information under this Agreement (the “Receiving Party”) at the time of its receipt from the Party disclosing the Confidential Information (the “Disclosing Party”) or its Affiliates as shown by documentation reasonably acceptable to Disclosing Party, (iii) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (iv) was independently developed by the Receiving Party without use of any Confidential Information as shown by documentation reasonably acceptable to Disclosing Party.
b) Each Party hereby agrees to hold Confidential Information in strict confidence and shall, in any case, protect such Confidential Information with no less diligence than that with which it protects its own confidential or proprietary information of a similar nature. The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose unrelated to the Services. Each Party may disclose the Confidential Information of the other Party on a “need to know basis” and then only to its (and, in the case of New Era Communication, its Affiliates’) directors, officers, advisors, employees and other legal, business or financial partners or representatives; provided that all such persons are subject to written confidentiality agreements which contain provisions which are no less restrictive than the provisions of this Section 32. In addition, New Era Communication may disclose this Agreement under a comparable non-disclosure agreement in response to a third party due diligence request supporting a financing or non-ordinary course of business corporate transaction.
c) If the Receiving Party is legally compelled by any means (including deposition, interrogatory, request for documents, subpoena, civil or regulatory investigative demand or similar process) to disclose Confidential Information of the Disclosing Party, subject to applicable laws, the Receiving Party must provide the Disclosing Party with prompt written notice of such legal requirement in order to allow the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with this Section 32.
d) Upon the termination or expiration of this Agreement, or at any time upon the request of the Disclosing Party, the Receiving Party shall, at the Disclosing Party’s option, return or destroy (and certify as to such destruction) all Confidential Information of the Disclosing Party in its control or possession, other than copies which the Receiving Party may be required to maintain under applicable law or regulation.
33. EMERGENCY 911 SERVICES. BY USING THE SERVICE AND/OR New Era Communication EQUIPMENT, CUSTOMER ACKNOWLEDGES THE LIMITATIONS OF New Era Communication E911 SERVICE AS DESCRIBED IN THE E911 DISCLOSURE, AS WELL AS THOSE SET FORTH IN THIS SECTION 33. CUSTOMER AGREES AND ACKNOWLEDGES THAT WHILE MOST New Era Communication SERVICES OFFER ACCESS TO E911 SERVICE, OTHERS MAY NOT. CUSTOMER IS ADVISED TO THOROUGHLY READ AND UNDERSTAND THE E911 DISCLOSURE AND THE OPTIONS AVAILABLE. CUSTOMER ACKNOWLEDGES THAT IT HAS RECEIVED THE E911 DISCLOSURE AND HAS READ, UNDERSTANDS AND AGREES TO THE TERMS AND CONDITIONS OF THE E911 DISCLOSURE, AND ASSUMES THE RISKS ASSOCIATED WITH THE New Era Communication E911 SERVICE LIMITATIONS.
34. Local Number Portability.
a) Number Transfer on Service Activation. In the event Customer is not utilizing a new phone number or numbers for the Services, but rather is transferring existing phone number(s) which currently is subscribed to a carrier other than New Era Communication to New Era Communication, the terms and conditions of this section shall apply:
i. Customer hereby authorizes New Era Communication to notify Customer’s current local telephone company or other service provider of its decision to switch local, local toll and long distance services to New Era Communication and represents that Customer is authorized to take this action;
ii. Customer agrees and acknowledges (i) that the porting of Customer’s numbers requires Customer’s provision of specific, detailed and accurate information to New Era Communication and other service providers, as applicable, and the completion of certain steps and procedures, as well as third parties’ completion of certain tasks, and (ii) that numbers may not be ported in or ported out unless such information matches the information on record with New Era Communication or other service providers. The completion of a port request is dependent upon these and other factors which may be outside the control of New Era Communication or other service providers, and accordingly, New Era Communication is not responsible for delayed or incomplete ports. FAILURE TO PROVIDE ANY INFORMATION REQUESTED BY New Era Communication OR THE THIRD PARTY SERVICE PROVIDER WILL DELAY THE PORTING OF THE NUMBER TO New Era Communication. New Era Communication SHALL NOT BE RESPONSIBLE FOR ANY DELAY IN THE PORT OF CUSTOMER’S NUMBER AND WILL NOT PROVIDE CREDIT FOR ANY SUCH DELAYS.
iii. Customer agrees and acknowledges that if the Services are set up prior to the date that the number transfer becomes effective (“Port Effective Date”), Customer may only be able to make outgoing calls using the Services. In such event, Customer should keep another phone connected to the existing phone number to receive incoming calls until the Port Effective Date, after which Customer will be able to both make and receive calls using the Service. Customer agrees and acknowledges that if the Activation Date has not occurred as of the Port Effective Date, its existing phone service for the number being transferred may be disconnected and Customer may have no service for that number. Therefore, to avoid an interruption in Customer’s phone service, Services must be activated prior to the Port Effective Date. An estimate of the Port Effective Date will be sent to Customer via e-mail by New Era Communication.
b) Number Transfer on Service Termination. After the Activation Date, New Era Communication or its providers may receive requests from other telephony providers (“Requesting Party”) acting as agents on Customer’s behalf to port a telephone number currently assigned to Customer to a third party provider (“Port-Out”). New Era Communication will support all such requests and will cooperate with the Requesting Party to perform any Port-Out in accordance with the Requesting Party’s reasonable directions and New Era Communication’ or its vendors’ standard operating procedures. Until the effective date of Customer’s proper termination (in accordance with the terms of this Agreement), Customer will: (a) remain a New Era Communication customer; and (b) be responsible for all charges and fees associated with Customer’s New Era Communication Service. Customer will not receive any refund or partial refund or any credits for any charges already billed to Customer’s account. New Era Communication assumes no liability for costs associated with any numbers that cannot be ported or that Customer chooses not to port. Customer acknowledges that in the event of any account termination or cancellation, all telephone numbers associated with Customer’s account may be released. Similarly, the cancellation of individual services that have associated telephone numbers will result in the release of such numbers. Customer acknowledges that it is Customer’s responsibility to work with a third party provider to port out those numbers prior to Customer’s termination or cancellation of Customer’s account or termination of Services.
c) Ported Telephone Numbers Upon Cancellation.
i. Cancellation. If Customer requests that a new service provider port a number from New Era Communication, then Customer is required to inform New Era Communication of Customer’s intent to terminate the specific affected Services on Customer’s account or New Era Communication will continue to bill for such Services. Customer will continue to be responsible for all the charges and fees associated with the remaining Services on Customer’s New Era Communication account. Customer will not receive any refund or partial refund or any credits for any charges already billed to Customer’s account.
ii. Consent & Electronic Submission. In some cases, New Era Communication may permit Customer to submit documentation required to port numbers using a web-enabled user interface. Customer may withdraw Customer’s consent to submit Customer’s porting request electronically by contacting New Era Communication Customer Care prior to our submitting the porting request to the carrier. Customer’s consent to electronic submission applies only to the specific porting request Customer submit through web-enabled interface.
iii. Facsimile Service. Numbers assigned by New Era Communication for New Era Communication’s facsimile service cannot be ported to a new service provider without the assistance and cooperation of New Era Communication’ underlying partner. New Era Communication will use commercially reasonable efforts to facilitate a port of a facsimile number which was ported on Customer’s behalf to New Era Communication by another service provider. Customer may be required to pay a porting fee to New Era Communication not to exceed One Hundred Dollars ($100.00) per facsimile number ported.
35. Beta Services and Software. Certain Services or Software may be designated or offered as a “beta” version (“Beta Version”) of a Service or Software, which may or may not be released as a full commercial service in the future. Except as otherwise indicated under separate terms and conditions that may apply to such Beta Versions, New Era Communication may or may not charge for such Beta Versions, and reserves the right to charge for subsequent versions of the Beta Version, including any potential commercial releases. Customer acknowledges and agrees that the Beta Version may contain, in New Era Communication’ sole discretion, more or fewer features or different licensing terms than a subsequent commercial release version of the Beta Version. New Era Communication reserves the right not to release later commercial release versions of the Beta Version. Without limiting any disclaimer of warranty or other limitation stated in these Terms (or any separate terms and conditions that would otherwise be applicable to such Beta Versions), Customer agrees that Beta Versions are not considered by New Era Communication to be suitable for commercial use, and that may contain errors affecting their proper operation. CUSTOMER ACKNOWLEDGES AND AGREES THAT USE OF ANY BETA VERSION MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT CUSTOMER’S USE OF ANY SERVICES OR SOFTWARE. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, INCLUDING New Era Communication SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM CUSTOMER’S USE OF ANY BETA VERSION. The fact and existence of any Beta Version shall be deemed to be New Era Communication Confidential Information under this Agreement.
36. New Era-Provided Telephone Numbers. Telephone numbers provided by New Era Communication (New Era-provided numbers) to Customer shall be leased and not sold. Customer will use New Era-provided numbers it leases with the Services and on devices approved or prescribed by New Era Communication. Customer retains no rights in such numbers upon termination of Services. New Era Communication reserves the right to move, change or cancel New Era-owned numbers in its reasonable discretion.
37. Electronic Recording. Customer acknowledges that there are federal and state laws governing the electronic recording of telephone conversations and that New Era Communication is not liable for any illegal use of the Services. It is Customer’s responsibility to determine and comply in full with its own compliance obligations. No Services or products offered by New Era Communication are represented or warranted to comply with electronic recording laws. Customer agrees that New Era Communication may, in its sole discretion, record any call between Customer and New Era Communication for New Era Communication quality control purposes.
38. Right to Review Use of Services. New Era Communication reserves the right to review and monitor Customer’s use of the Service for purposes of confirming compliance with this Agreement. New Era Communication may also review Customer’s security and anti-fraud protections for select New Era Communication Services.
a) Assignment. This Agreement inures to and is binding upon the Parties’ successors and permitted assignees. Customer shall not assign this Agreement without New Era Communication’ prior written consent, not to be unreasonably conditioned, withheld or delayed; provided that Customer may, without consent, but with reasonable prior written notice, assign its rights and obligations hereunder to any parent, affiliate or subsidiary of Customer or pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets; provided, however, that any proposed assignee shall be at least as creditworthy as Customer (as reasonably determined by New Era Communication), shall agree in advance and in writing to assume and be bound by all provisions of this Agreement, and shall deliver to New Era Communication fully-executed documents reasonably acceptable to New Era Communication establishing the terms of such an assignment. Any assignment by Customer other than as permitted by this Section 39(a) shall be void and of no force or effect.
b) Force Majeure. Neither Party is liable for any failure of performance (other than for delay or performance in the payment of money due and payable hereunder) to the extent such failure is due to any cause or causes beyond such Party’s reasonable control, including acts of God, fire, explosion, vandalism, cable cut, adverse weather conditions, governmental action, acts of terrorism, denial of service attacks or strikes and similar labor difficulties. Either Party’s invocation of this clause will not relieve Customer of its obligation to pay for any Services actually provided or permits Customer to terminate any Services except as expressly provided herein. In the event such force majeure event prevents the availability or material use of the affected portion of Services for more than ten (10) consecutive days, either Party may terminate the affected portion of the Services without liability.
c) Intellectual Property and Publicity. Except as explicitly granted herein, neither Party is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, logos, trade names, patents, trade secrets or other form of intellectual property of the other Party or its affiliates without the express prior written authorization of the other Party. Customer will not issue any press release or other public statement relating to this Agreement, except as may be required by law or agreed by New Era Communication in a writing signed by an authorized representative of New Era Communication’s Corporate Communications department. Customer agrees that New Era Communication may identify Customer using its name, trademarks and/or logos in its marketing collateral, presentations and websites, provided that Customer may revoke such right with written notice to New Era Communication at any time.
d) Nonexclusive. This Agreement is non-exclusive. Nothing in this Agreement prevents either Party from entering into similar arrangements with other persons or entities.
e) Notices. Except as otherwise provided in this Agreement,
i. To Customer: In the event New Era Communication is required or desires to provide Customer with notice under this Agreement, it will provide electronic notice to the e-mail address on file for the Company Contact and/or Superuser. In the event Customer changes its e-mail address for notice purposes, Customer shall advise New Era Communication immediately in writing. Customer hereby agrees to electronic delivery of all required notifications, including invoices, unless otherwise expressly provided herein.
ii. To New Era Communication: Any notice required or given under this Agreement to New Era Communication (except for billing dispute as described in Section 11) will be in writing and delivered to New Era Communication as follows:
New Era Communication LLC
Attn: Legal Department
7900 West Park Drive, Suite A-315
McLean, VA 22102
New Era Communication Client Services
New Era Communication LLC
Attn: Senior Vice President – Client Services
23 Main Street
Holmdel, NJ 07733
Copies of notices shall be sent via fax or e-mail (which shall not constitute formal notice) to:
Office of the Chief Legal Officer
New Era Communication LLC
E-mail: New EraBusNoti
Such address and contact information may be changed by either Party by prior written notice to the other Party in accordance with this paragraph. A notice will be deemed to be duly given (i) on the date of delivery if personally delivered by hand or by a nationally recognized overnight express courier, or (ii) upon the third day after such notice is deposited in the United States mail, if mailed by registered or certified mail, postage prepaid, return receipt requested. For clarity, e-mail or fax notices are informational only and shall not constitute formal notice.
f) Facsimile and Electronic Transmission; Counterparts. Sales Orders, and other documents that may be executed in connection with the Services (collectively “Service Documentation”), may be executed and delivered by facsimile or electronic transmission, and upon receipt, such transmission shall be deemed the delivery of an original. Service Documentation may be executed in several counterparts, each of which when executed shall be deemed to be an original, and such counterparts shall each constitute one and the same instrument.
g) Electronic Communications and Consent to use of Electronic Signatures and Records. As a convenience and courtesy to you, New Era Communication provides access to its Services online which may require Customer to enter into agreements or receive notices electronically. Accordingly, Customer acknowledges and agrees that by clicking “I Agree” or “I Accept” anywhere on a New Era Communication website:
i. Customer agrees to conduct electronically the particular transaction into which Customer thereby enters including, without limitation, entering into this Agreement;
ii. Customer has read and understands the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, and any policies and any amendments hereto or thereto;
iii. Customer agrees to, and intends to be bound by, the terms of the particular transaction into which Customer thereby enters;
iv. Customer is capable of printing or storing a copy of electronic records of transactions into which Customer enters including, without limitation, this Agreement and any amendments hereto;
v. Customer agrees to receive electronically information about the Services and other electronic records into which Customer thereby enters including, without limitation, this Agreement; and
h) Basis of Bargain; Failure of Essential Purpose. Customer acknowledges and agrees that New Era Communication has established its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability and the warranty disclaimers set forth in this Agreement, and that they are an essential basis of the bargain between the parties and are material terms of this Agreement. The Parties agree that the limitations and exclusions of liability and warranty disclaimers specified in this Agreement will survive and apply even if found to have failed their essential purpose, and Customer hereby waives its right to contest the enforceability of any provision of this Agreement by reason of such failure.
i) No Commitments. Customer represents that New Era Communication has made no commitments or promises orally or in writing with respect to delivery of any future features or functions. In relation to any future features or functions, all presentations, RFP responses, and/or product roadmap documents, information or discussions, either prior to or following the date herein, are informational only, and are not the basis for, nor part of this this Agreement or any Sales Order. New Era Communication has no obligation to provide any future releases or upgrades or any features, enhancements or functions, unless specifically agreed to by both Parties. Customer acknowledges that its purchasing decisions are not based upon any future features or functions.
j) Survival, Modification. The terms and conditions of this Agreement will survive the expiration or other termination of this Agreement to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the Party in whose favor they operate. Except for the rights of New Era Communication in Section 1, all modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by authorized representatives of both parties.
k) Relationship of the Parties. The relationship of New Era Communication and Customer shall not be that of partners, agents or joint venturers for one another, and nothing contained in the Agreement shall be deemed to constitute a partnership or agency agreement between the Parties for any purposes. New Era Communication and Customer shall be independent parties and shall discharge their contractual obligations at their own risk subject to the terms of this Agreement.
l) Third Party Services. New Era Communication may use or rely on one or more licensors, service providers, and/or equipment providers or equipment lessors whose products, equipment and/or services are provided in conjunction with, or incorporated into, the Services and/or New Era Communication Equipment (“Third-Party Services”). Such Third Party Services may also be provided under New Era Communication’ trademarks or otherwise branded as a New Era Service. Each provider of such Third-Party Services (a “Third-Party Service Provider”) is expressly made a third party beneficiary under the applicable Sales Orders and this Agreement and shall have the right to enforce the terms and conditions of the Sales Orders and this Agreement respecting any terms affecting such Third-Party Service Provider as if such Third-Party Service Provider were a party to the Sales Order and/or this Agreement. No other third party beneficiaries of this Agreement are intended by the Parties. Further, Third-Party Services may be governed by separate legal terms and conditions, which may be found or identified in documentation or on other media delivered with the Third-Party Services and which are incorporated by reference into these Terms and shall govern the use of Third-Party Services. Customer agrees to comply with such terms and conditions of all Third-Party Services and Third-Party Service Providers. Any non-compliance with terms and conditions of Third Party Service Providers shall be considered non-compliance with these Terms.
m) Waiver. The failure of either Party to enforce compliance with a provision of this Agreement shall not be construed as a general waiver of such provision or any other provision.
n) Severability. If any term, covenant or condition contained in this Agreement or any Sales Order is, to any extent, held invalid or unenforceable in any respect under the laws governing this Agreement, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
o) Governing Law. The laws of the State of Delaware will govern this Agreement, without reference to its principles of conflicts of laws. Because this agreement is a transaction in interstate commerce, the Federal Arbitration Act (“FAA”), and not state arbitration law, shall govern the interpretation, validity and enforceability of the arbitration provision in Section 40, below.
p) Entire Agreement. This Agreement supersedes any prior or contemporaneous agreements, statements, understandings, writings, commitments, or representations concerning its subject matter, as between Customer and New Era Communication.
q) Export Controls. Customer agrees to comply fully with all relevant export laws and regulations of the United States, including the U.S. Export Administration Regulations, administered by the Department of Commerce. Customer also expressly agrees that it shall not export, directly or indirectly, re-export, divert, or transfer any portion of New Era Communication Service, Equipment or Software to any destination, company, or person restricted or prohibited by U.S. export controls.
r) Choice of Language. The parties hereby confirm their express wish that this Agreement and all related documents be prepared in the English language only. Les parties reconnaissent avoir exigé que le presente convention et tous les documents connexés soient redigés en anglais seulement.
40. Dispute Resolution; Binding Arbitration.
a) Written Notice. In the event either Party has a dispute or claim against the other Party (except with respect to invoice disputes which are addressed in Section 11(a) vi.), the disputing Party shall provide written notice to the other Party in accordance with the provisions of Section 39(e), above.
b) Initial Escalation to Management. The Parties agree to escalate disputes to their respective management, who will use commercially reasonable efforts to resolve the dispute by consulting with each other in good faith to reach an equitable resolution satisfactory to both parties within thirty (30) days of the receipt of notice. Neither Party shall pursue or commence proceedings regarding the dispute in any court, administrative arbitral or other adjudicative body prior to engaging in such consultations and negotiations.
c) Resolution in Small Claims Court. In the event the dispute is not resolved, and the claim falls within the dollar limit allowed by applicable state law along with any other jurisdictional requirements, either Party may seek to have that dispute resolved in small claims court in any state in which Services are provided to the Customer by New Era Communication.
d) Binding Arbitration. If negotiations fail to resolve the dispute within thirty (30) calendar days, and/or small claims court is not a valid option due to the size or nature of the claim, all disputed claims (except for claims set forth in subsection (e) below) must be resolved by binding arbitration before a single arbitrator in accordance with the commercial rules of the American Arbitration Association (“AAA”) (available on the AAA website, www.adr.org) in effect as of the date this Agreement goes into effect. This agreement to arbitrate is intended to be given the broadest possible meaning under Applicable Laws. The initiation of an arbitration dispute shall not otherwise prevent New Era Communication or Customer from terminating Services in accordance with the Terms.
e) Disputes About This Agreement to Arbitrate. Disputes about the arbitrability of any claims and/or the scope, enforceability, or validity of this arbitration agreement shall be decided by an arbitrator.
f) Disputes That Need Not Be Arbitrated. Disputed claims involving either Party’s intellectual property rights, indemnity, or confidentiality obligations; fraudulent or unauthorized use, theft, or piracy of service; or matters relating to injunctions or other relief may be resolved by binding arbitration as set forth in subsection (d), but are not required to be resolved by binding arbitration and may be heard in a court of law, at the option of the entity asserting the disputed claim.
g) Notice for Commencing Arbitration. If an agreement to resolve the dispute is not reached, an arbitration proceeding may be commenced by downloading or copying a form from the AAA website (http://www.adr.org). The amount of any settlement offer made by Customer or New Era Communication shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or New Era Communication is entitled.
h) Location. All hearings conducted as part of the arbitration shall take place at a location, convenient to Customer, based upon Customer’s billing address (or, if no business address is provided, your service address). If Customer claim is for $10,000 or less, Customer or New Era may request that the arbitration be conducted solely on the basis of documents submitted to the arbitrator or through a telephonic hearing. If either party objects, then the arbitrator shall proceed to an in-person hearing as established by the AAA Rules. If Customer claim is in excess of $10,000, the right to a hearing will be determined by the AAA rules.
i) Costs. Each Party will be responsible for its own costs incurred in the arbitration, including arbitration filing fees and attorneys’ or expert witness fees. The arbitrator’s costs and expenses shall be shared equally between the Parties. If a Party elects to appeal an award or seeks to vacate the award in court, the prevailing Party in the appeal or judicial proceeding shall be entitled to recover all reasonable attorneys’ fees incurred in that appeal or judicial proceeding.
j) Waiver of Jury Trial. Customer and New Era Communication agree that, by entering into this agreement, Customer and New Era Communication are waiving the right to a trial by jury. Customer and New Era Communication agree that the arbitrator may award relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. The arbitrator may not award special, indirect, punitive, incidental or consequential damages. CUSTOMER AND New Era Communication AGREE THAT CUSTOMER MAY BRING CLAIMS AGAINST New Era Communication ONLY IN CUSTOMER’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND THAT CUSTOMER EXPRESSLY WAIVES ITS RIGHT TO BRING A CLASS ACTION SUIT. Customer and New Era Communication agree that the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding.
k) Severability. If any term, covenant, or condition contained in this dispute resolution/arbitration provision, is, to any extent, held invalid or unenforceable in any respect under the laws governing this dispute resolution/arbitration provision, the remainder of this dispute resolution/arbitration provision shall be valid and enforceable to the fullest extent permitted by law.
END OF TERMS OF SERVICE