ECO Carrier Master Service Agreement

Owned by Kelly Evans (Unlicensed)
Last updated: Oct 20, 2022 by Rob Whyte (Unlicensed)

ECO CARRIER MASTER SERVICE AGREEMENT

1 Terms.

The terms and conditions in this Master Service Agreement ("MSA" or "Service Agreement") shall be binding upon any 46 Labs Eco Carrier Service Order, namely the 46 Labs Eco Carrier Order Form ("SO"), and together with the terms and conditions in each SO, any supplemental terms and conditions, including exhibits and Service Level Agreements, Service Support Agreements, 46 Labs' Acceptable Use Policy ("AUP") and Privacy Policy, comprise Customer's agreement with 46 Labs (the "Agreement"). In the event of an inconsistency between these documents (but only to the extent of the inconsistency), the order of precedence, from the most to the least controlling, shall be:

  • Any mutually agreed upon SO or amendment or addendum thereto, properly executed by authorized representatives of both 46 Labs and Customer;

  • Applicable supplemental terms and conditions, including exhibits, Service Level and Support Agreements;

  • This MSA;

  • The AUP and Privacy Policy.


THIS MSA, ALL SOs, ANY SUPPLEMENTAL PRODUCT TERMS AND CONDITIONS, AND 46 LABS' AUP AND PRIVACY POLICY ARE LOCATED ON A WEBSITE ACCESSIBLE AT ALL TIMES BY CUSTOMER AND MAY BE MODIFIED BY 46 LABS AT ANY TIME. FOR CHANGES TO ANY OF THE AFOREMENTIONED COMPONENTS OF THE AGREEMENT, 46 LABS WILL NOTIFY CUSTOMER OF ANY MATERIAL CHANGES IN THE AGREEMENT PRIOR TO THE BILLING PERIOD IN WHICH THE CHANGES WOULD GO INTO EFFECT, EXCEPT FOR RATES, WHICH MAY BE CHANGED ON ONE (1) DAY NOTICE. NOTIFICATION OF ANY SURCHARGE MAY BE IN THE FORM OF A BILL INSERT OR BY A MESSAGE WITHIN CUSTOMER'S INVOICE; BY POSTCARD OR LETTER; BY 46 LABS' CALLING AND SPEAKING TO CUSTOMER OR LEAVING A MESSAGE FOR CUSTOMER; BY POSTINGS ON 46 LABS' KNOWLEDGE BASE; OR BY EMAIL. CUSTOMER SHALL BE BOUND BY CHANGES IMMEDIATELY AFTER THEY BECOME EFFECTIVE. CUSTOMER ACCEPTS THE INCORPORATION INTO THE AGREEMENT OF SUPPLEMENTAL PRODUCT TERMS AND CONDITIONS, THE TERMS AND CONDITIONS IN THIS MSA, AUP AND PRIVACY POLICY, AND ALL MODIFICATIONS MADE THERETO.

2 Provision of Services.

2.1 Regulation: The rates set forth in the Agreement are subject to the imposition of new regulations, modifications of existing regulations, new interpretation, application or enforcement of, or exercise of authority related to, any regulation or finding of any federal, state and/ or local regulatory agency, legislative body, or a court of competent jurisdiction, including, without limitation, the imposition of any charges, surcharges, and/or taxes in reliance on or as a result of the same ("Regulatory Change"). 46 Labs reserves the right, at any time (including retroactively) to (i) to pass through to Customer all charges, surcharges or taxes directly or indirectly related to such Regulatory Change, and/or (ii) modify the rates and/or terms and conditions of the Agreement to reflect the impact of such Regulatory Change, including, without limitation, the impact of any actions by third parties in connection with such Regulatory Change.

2.2 Availability of Facilities: 46 Labs' Telecommunications Service ("Service") is offered and furnished subject to the availability, in 46 Labs' sole judgment, of all necessary facilities, including those acquired or leased by 46 Labs from other entities.

2.3 Reseller: 46 Labs is acting as a reseller/network provider of certain services, facilities and equipment provided by third parties. 46 Labs may be unable to initiate service due to facilities or other constraints of third parties. Further, 46 Labs cannot guarantee any requested turn up/ start of service date, or ensure that 46 Labs or its underlying network/facilities providers can achieve any projected turn up/start of service date. Any statement or representation to the contrary shall be deemed null and void.

2.4 Right to Alter Service: In its sole discretion and without liability to Customer, 46 Labs may:

(a) alter the methods, processes or suppliers by or through which it provides Service;

(b) change the facilities used to provide Service;

(c) substitute comparable Service for that being provided to Customer. If necessary due to the potential impact on affected Customers, 46 Labs will furnish prior notice of any alterations, changes or substitutions.


2.5 46 Labs Communications' Right to Block, Discontinue, or Surcharge Service Without Notice to Customer:

2.5.1 Fraud, Network Blockage or Degradation: 46 Labs Communications may discontinue furnishing Service by blocking traffic to or from certain countries, cities, NXX exchanges, or individual telephones; by blocking call origination; or by blocking calls using certain Customer authorization or access codes; and/ or cancel Customer's account immediately and without notice, without 46 Labs Communications incurring any liability whatsoever, if 46 Labs Communications deems that such action is necessary to prevent or protect against fraud, or to otherwise protect 46 Labs Communications' personnel, agents, facilities or services, for reasons which include but are not limited to:

(a) violation of 46 Labs Communications' AUP;

(b) use or misuse of the Service in a manner that results, or could result, in network blockage or other degradations that adversely affect the Service furnished to Customer or to other existing or prospective customers of 46 Labs Communications;

(c) manipulation, change, or in any way modifying traffic line records, including the Calling Party Number ("CPN") or Automatic Number Identification ("ANI");

(d) sequential dialing;

(f) call blasting;

(g) excessive incomplete calls;

(h) improperly formatted SIP messages;

(i) uses, or threatens to use any of the Services for any unlawful or fraudulent purpose or otherwise violates the terms of the Agreement;

(j) if 46 Labs Communications is ordered or requested to terminate service by a governmental entity. Regardless of whether or not 46 Labs Communications blocks service, the Customer shall still be fully liable for all fraudulent calls made on Customer's Service.


2.5.2 For Financial Cause: 46 Labs Communications may immediately and at any time terminate the Agreement, discontinue service, cancel an application for service, cancel the Customer's account, or require Customer to deposit funds as security, without incurring any liability, for any of the following reasons:

(a) Customer fails to pay any amount owed to 46 Labs Communications when due;

(b) Customer's failure to comply with any material term or condition of this Agreement;

(c) For usage by Customer beyond any credit limit or prepaid balance limit imposed by 46 Labs Communications;

(d) If, in 46 Labs Communications' sole judgment, any aspect of Customer's payment arrangements with 46 Labs Communications appear to be fraudulent, including false or misleading credit information, or Customer's use of a credit card that has been reported as misused or stolen;

(e) Customer's ability to pay, or if, in 46 Labs Communications' sole judgment, Customer's payment arrangements with 46 Labs Communications appear to be inadequate to meet any of Customer's obligations to 46 Labs Communications coming due;

(f) Customer's filing of any voluntary or involuntary Petition in the bankruptcy court which names Customer as the debtor;

(g) Customer communicates any intent to breach, or to not comply with the terms of this Agreement, including but not limited to payment for Services at then-prevailing rates.

 

2.5.3 Customer Obligation to Pay Through Disconnection Period: Customer shall be responsible for payment of all non-usage based charges through any disconnection period.

2.6 Service Reconnection Delay: If service is suspended and/or disconnected and then resolution of the issue occurs, the process of reconnection of the service may take up to thirty (30) business days.

2.7 Expedited Installation: Customer acknowledges that requests and payments for an expedited installation do not guarantee that any third party will meet a requested installation date. Requests for expedited installation may expedite the process by which Customer's order is serviced, but 46 Labs cannot guarantee that any installation will occur by a specified date. 46 Labs cannot refund any payment made for expedited service in the event that an expedited service date is not met.

2.8 Service Availability: The Service is available throughout the Term, except in the case of scheduled maintenance of the 46 Labs network and/or its underlying carrier's networks. 46 Labs will use commercially reasonable efforts to provide prior notification via electronic mail ("email") to Customer regarding any scheduled maintenance of the Service. 46 Labs may interrupt its provision of Service for unscheduled emergency maintenance without notice to Customer or Customer's customers. 46 Labs reserves the right to monitor and/or record certain calls for the purpose of quality control or trouble-shooting service issues, subject to state and federal privacy laws.

2.9 Local Number Portability: 46 Labs utilizes the Local Number Portability database maintained on behalf of the telecommunications industry by the Number Portability Administration Center ("NPAC") for validation purposes. As a result, the number dialed by Customer may return porting information from the NPAC database which results in calls terminating to different physical locations, and/or Operating Company Numbers ("OCN") and Local Access Transport Areas ("LATA") that may differ from the dialed number. 46 Labs does not provide Customer access to the NPAC database. Customers wishing to determine whether a dialed number has been ported prior to dialing must arrange independent access to the NPAC database.

2.10 OCN Information: All calls will utilize OCN information provided by Bellcore or similar database providers. OCN's are determined by criteria including the NPA/ NXX of the number dialed, as well as the NPAC database. 46 Labs shall not be liable for the accuracy of any OCN information, which may be utilized by Customer for any purpose, including but not limited to rating, scrubbing or sorting.

2.11 Internet Services: All Internet services provisioned under this Agreement or any 46 Labs SO are provided as information services, and not as telecommunication services for the purposes of regulation.

2.12 Rights to IP Addresses and Circuits: Upon termination of the Agreement or any SO, or cancellation of any Service, all rights to circuits ordered by Customer will revert to 46 Labs, and Customer shall have no rights to the continued use of such circuits even if 46 Labs ordered such circuits through another provider. Similarly, 46 Labs does not represent that IP Addresses used by Customer in conjunction with the Service will be available to Customer after termination or cancellation. Customer agrees that IP addresses are not guaranteed, transferable or provided for further distribution.

2.13 Requested Start Date: 46 Labs will use its commercially reasonable efforts to activate Service by the agreed-upon date. However, 46 Labs cannot guarantee Service activation by a particular date because 46 Labs relies on other entities, such as suppliers and Customer, to perform certain tasks and provide certain information before 46 Labs can activate Service. Customer is responsible for canceling any communications services that the Service will replace and for any and all charges related to those services.

3 Billing and Payment Arrangements.

3.1 Form of Invoice: 46 Labs shall send invoices for services by either email, web portal or surface mail, and any invoice received by either method shall constitute a valid bill for services.

3.2 Payment: Customer shall pay for all Services ordered from 46 Labs, pursuant to a SO at the rates set forth in such SO or other pricing exhibits, or as amended from time to time. Customer shall timely pay the full amount invoiced (subject to Section 4- Billing Disputes), even if Customer expects a portion of the invoiced amount to be paid or reimbursed in the future by a future credit. For a monthly recurring charge that begins somewhere in-between the start and end of a billing period, such charge will be prorated for that first billing period. Each month, 46 Labs shall bill Customer in arrears for usage charges, non-recurring and pro-rata monthly charges (if any) as well as in advance for all applicable third-party services.

3.3 Rounding: Unless otherwise stated in an SO, charges for Services shall be rounded up to two digits. By way of example, a cost calculated to $1.214 would be rounded to $1.22.

3.4 Prepayment: Unless Customer receives credit approval in writing from 46 Labs' credit department and has signed a separate billing agreement, the Customer will be invoiced on a prepaid basis.

3.4.1 30-Day Payment Customers: For Customers who receive written credit approval from 46 Labs' credit department for thirty (30) day payment terms, payments for Service shall be due upon Customer's receipt of the invoice. Undisputed amounts which are not paid in full within thirty (30) days of the invoice date will be past due and subject to an additional charge equal to the lesser of one and one half percent (1.5%) per month late payment fee or the maximum monthly rate permitted by law on past-due balances. In the event of non-payment of any past due invoice due, or a material breach of this Agreement, including, but not limited to fraudulent use of 46 Labs services, all outstanding invoices, including any unbilled usage shall become immediately due and payable, and Customer shall be considered in default.


3.5 Credit Information: Customer agrees that 46 Labs may request credit information from third parties, and Customer authorizes the release of such information as part of this application.

3.6 Forms of Payment: Acceptable forms of payment are: wire transfers and ACH credits; except where other payment form restrictions are specifically noted in a separate SO or addendum. Payment by cash is not acceptable. 46 Labs may accept, in its sole discretion, payment by credit card. If Customer pays 46 Labs by credit card, Customer's continued receipt of Services, after Customer's payment to 46 Labs appears on Customer's credit card statement, shall be construed as Customer's acknowledgement of the validity of such undisputed charges, and as Customer's waiver of all rights to reverse such charges. A three percent (3%) surcharge will be applied to the total amount paid using a credit card. Customer's sole recourse for disputed charges shall be as outlined in Section 4 ("Billing Disputes").

3.7 Service Start Date; Invoicing; and Payment Deadline: The Start of Service Date shall be the date when the Service is available for use by the Customer. Customer's obligation to pay for Service shall begin on the Start of Service Date. Service invoicing will occur on a monthly basis.

3.8 Non-recurring Charges: Non-recurring Charges are due and payable on the Start of Service Date or as otherwise billed by 46 Labs.

3.9 Monthly Recurring Charges: Monthly Recurring Charges are fixed in amount, not dependent on usage.If the Start of Service Date is other than on the first day of the monthly billing period or if Service terminates on other than the last day of a monthly billing period, Customer's first bill shall include pro-ration of the first month's Service charges, as well as any NRCs not previously paid.

3.10 Monthly Usage Charges: Monthly Usage Charges are variable in amount, and based on the usage over the base Monthly Recurring Charge. If the Start of Service Date is other than on the first day of the monthly billing period or if Service terminates on other than the last day of a monthly billing period, Customer's first bill shall include pro-ration of the first month's Monthly Usage Charges.

3.11 Taxes, Surcharges and Other Service Related Fees:

3.11.1 Fees: Service rates and charges are exclusive of all taxes, fees, tax-related surcharges and tax-like surcharges (as enumerated below). Customer shall be responsible for, and must pay, all taxes, including, without limitation, sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, consumption and other taxes, fees, duties, charges or surcharges, roaming charges, however designated, and imposed directly on 46 Labs based on the provision, sale or use of Service. If Customer believes it, or the Services it receives and uses, are exempt from any tax, Customer will provide 46 Labs with a properly executed exemption certificate in a form acceptable to 46 Labs that evidences the exemption claimed. Customer shall renew such certification annually and shall provide evidence of such continuing certification upon request by 46 Labs. In the event Customer fails to renew its tax-exempt certification, or if its tax-exempt certification is repealed, Customer shall be responsible to 46 Labs for all such taxes from the date Customer's tax-exempt certification became invalid. Tax exemption will only apply to Taxes incurred after the date 46 Labs receives the Tax Exempt Document (Customer cannot receive credit for any Taxes already billed). Customer's obligation to pay applicable taxes (and all other charges due and owing for Service) shall survive the expiration of the Agreement. Many surcharges, including but not limited to the Federal Universal Service Fund Surcharge, are not a tax and are not subject to exemption. 46 Labs' primary surcharges are listed on the 46 labs Service Terms knowledge base.

3.11.2 Cost Recovery: 46 Labs may impose recovery fees in order to recover costs associated with regulatory compliance, administrative and network facilities costs.

3.11.3 Set-up, Installation and Disconnect Fees: Customer shall pay all applicable installation and disconnect fees, service upgrade or relocation fees, which will be invoiced on a Non-Recurring Charge basis and are non-refundable. Quoted installation fees contemplate installations in normal locations under normal working conditions during regular business hours. Any installations under other circumstances including, but not limited to, an expedited basis outside of standard installation intervals will be subject to additional charges.

3.11.4 Charges Imposed By Other Suppliers: If an entity other than 46 Labs (e.g. another carrier or supplier) imposes charges on 46 Labs in connection with the provisioning of Service to Customer, including but not limited to, for expedited installations, such charges will be invoiced by 46 Labs on a pass-through basis and paid by Customer.

 

3.12 Termination: If service is terminated for any reason, Customer will pay 46 Labs for (a) Services that Customer has used through the date that 46 Labs or Customer terminates the Services, (b) any outstanding balance for non-recurring charges, and (c) all charges that may still be due or may be incurred for early termination (see section 3.13 Early Termination Liability).

3.13 Early Termination Liability: Except as may be mutually agreed upon in writing, such as in the SO, in the event Customer terminates the Service or the Agreement or any SO is after submission of an order but before the end of the applicable term, the Customer shall pay to 46 Labs on demand, as liquidated damages and not as a penalty, an Early Termination Liability charge ("ETL") equal to the sum of one hundred percent (100%) of the Monthly Recurring Charges ("MRCs") for all of the months remaining in any applicable term, In the event of Customer's termination of the Agreement before the expiration of its term, 46 Labs' actual damages would be impractical and/ or extremely difficult to ascertain, so the parties agree the ETL set forth above is a reasonable estimate of actual damages. With respect to Customer terminating the Agreement after the submission of paperwork but prior to the Start of Service Date, the number of months remaining in the term shall be the total number of months for which the Customer has contracted. Assessment of an ETL does not relieve Customer of Customer's obligation to pay any non-recurring charges or any undisputed past due charges and interest thereon. expedited installations, such charges will be invoiced by 46 Labs Communications on a pass-through basis and paid by Customer.

3.14 Recovery of Collection Costs: Unless otherwise prohibited by law, Customer shall reimburse 46 Labs for any costs incurred by 46 Labs in undertaking any collection activity, including, but not limited to, the reimbursement of reasonable attorneys' fees. Reasonable attorney's fees shall include the time and costs associated with 46 Labs' in-house legal staff efforts related to the collection activity. For purposes of calculating the time and costs, the Parties stipulate that 46 Labs' in-house legal staff's time shall be billed at $250.00 per hour.

3.15 Right of Offset: If Customer defaults on any payment obligation owed 46 Labs under any agreement for more than thirty (30) days and 46 Labs has funds that are owed the defaulting Customer, 46 Labs may offset that which it is owed by first applying such funds to the full balance due by the defaulting Customer. Any amount remaining following the offset shall be remitted to Customer in the normal course of business.

3.16 No Rollover: Unused Monthly base capacities do not rollover into subsequent months.

4 Billing Disputes.

4.1 Customer Obligation: Any invoices issued to Customer shall be deemed correct and binding on the Customer unless Customer files a dispute according to the provisions of this Section 4.

4.2 Requirements for Valid Dispute: An invoiced charge will be deemed disputed by Customer if, and only if:

(a) Customer believes in good faith that the charge was invoiced in error;

(b) Customer provides 46 Labs written notice of the disputed charge no later than ten (10) days from the date of the invoice on which the charge first appeared;

(c) Customer's notice of the disputed charge includes the amount of the disputed charge, the reason the charge is disputed, and documentation supporting the dispute, and provide all documents supporting each dispute. Customer shall not have the right to withhold any amount not properly disputed. If Customer does not dispute a charge(s) on the invoice within ten (10) days from the date of the invoice, then the invoice will be deemed to be correct.

 

4.3 Resolution of Disputed Charges: 46 Labs shall have the right to determine in good faith the merit of each dispute and Customer's associated payment obligation. 46 Labs will investigate all billing disputes and notify Customer in writing that:

(a) a credit will be issued to reverse any amount that 46 Labs determines was incorrectly billed,

(b) 46 Labs has determined that the disputed charge was invoiced correctly. After a billing dispute is resolved, if the dispute is resolved in 46 Labs' favor, Customer will, within five (5) business days of such resolution, remit to 46 Labs any required payment, plus interest at the lower of one and one-half percent (1.5%) per month or the maximum rate permissible under applicable state law, calculated from the due date until the date payment is received by 46 Labs.


Failure to pay such amount in full within such five (5) day period shall be a breach hereof and shall entitle 46 Labs, in addition to its other remedies at law or equity, to terminate all Services to Customer without notice and without liability of any kind or amount. If the dispute is resolved in Customer's favor, and Customer withheld payment of the disputed amount, then 46 Labs will issue a credit to reverse the amount incorrectly billed. If the dispute is resolved in Customer's favor and Customer previously paid the disputed amount, then 46 Labs will issue a credit to reverse the amount incorrectly billed and apply such credit against Customer's next invoice(s). If Customer is no longer being invoiced by 46 Labs, 46 Labs will remit to Customer the amount of the credit within forty- five (45) days of the date of such credit.

5 Services and Equipment.

5.1 Products and Customer Equipment Supplied by 46 Labs: 46 Labs may deliver to Customer certain software, hardware and documentation, including but not limited to 46 Labs-provided equipment (collectively, "Products"). 46 Labs grants to Customer a personal, limited, non-transferable, non-exclusive, license, without the right to sublicense, transfer, copy or create derivative works, to use the Products during the term of the appropriate SO solely for use with the Service specified in such SO and in accordance with the Agreement. Either 46 Labs or other third-parties own and will continue to own the software used to provide Services. Customer may not decompile, reverse engineer or otherwise use any software code from any software provided by 46 Labs or its suppliers. Some software necessary to fully utilize the full functionality of the Services may require Customer to accept additional terms and conditions required by the third-party providers of such software. If Customer has purchased or leased Equipment from 46 Labs or its certified third party leasing company then the Customer must install Equipment in accordance with instructions provided by 46 Labs (or its third party vendor). Customer may not change the settings on any equipment supplied by 46 Labs or its agents without 46 Labs' express written consent. In addition 46 Labs-provided equipment must be used solely for the purpose of Service utilization. 46 Labs will use commercially reasonable efforts to supply and configure the Products to allow Customer to use the Services, unless Customer is supplying its own equipment or purchasing it from a third party (including a 46 Labs authorized dealer or fulfillment partner).

46 Labs is not responsible for the configuration of, or the components of, Customer's personal computer or for other telephony equipment that may be necessary to make such customer-provided equipment compatible with the Service. For any equipment that Customer purchases directly through 46 Labs, 46 Labs may supply new or recertified equipment. On new and recertified equipment purchased by Customer through 46 Labs, Customer understands that any Product it purchases through 46 Labs, a dealer or fulfillment partner is only designed to work with 46 Labs' Services. If Customer or 46 Labs terminates Services for ANY REASON, Customer will NOT be eligible for a refund, either full or partial, for any fees paid by Customer for a Product, or for third party-supplied equipment.

5.2 Return of 46 Labs-Provided Equipment: Customer agrees to return all equipment provided by 46 Labs or its underlying carriers ("46 Labs Provided Equipment") within thirty (30) days of i) the termination of Services for any reason or ii) upon receiving replacement 46 Labs-Provided Equipment for a non-functioning unit or as part of a Service upgrade. Customers may receive a prepaid shipping label by emailing the request to shipping@46labs.com. Please include your company name, address and telephone number in the request. If Customer fails to return all of the 46 Labs-Provided Equipment within thirty (30) day period, 46 Labs shall invoice Customer for the current replacement cost of any 46 Labs-Provided Equipment not returned, plus taxes. The 46 Labs-Provided Equipment must be returned in the same condition as received, normal wear and tear excepted.

5.3 Maintenance, Support, and Repair for Products Provided by 46 Labs: All equipment provided to Customer by 46 Labs is subject to the terms and conditions set forth in the manufacturer's or publisher's warranty, end-user license, or agreement applicable to such Products, with no additional warranty of any kind from 46 Labs. If Customer purchases equipment from 46 Labs, an authorized dealer or fulfillment partner, Customer must address any issues or warranty concerns relating to that equipment with the manufacturer of such equipment or the authorized dealer or fulfillment partner. 46 Labs will not repair, replace or warranty such purchased equipment. Customer shall reimburse 46 Labs for the Field Service Technician visit, if applicable, at then-applicable rates and for the cost of any replacement equipment for the entire cost to repair and/or replace any Product in the event that Product requires replacement due to:

(a) misuse or abuse,

(b) failure to exercise reasonable care,

(c) altering original 46 Labs configuration,

(d) damage,

(e) theft,

(f) disaster.

If a replacement Product is requested for a 46 Labs-supplied non-purchased Product, 46 Labs will ship preconfigured replacements to Customer. Customer shall return any non- purchased faulty Product to 46 Labs within thirty (30) days of receiving the replacement Product or pay for such Product. Customer will not receive compensation for downtime associated with Product failure, replacement or repair. 46 Labs' liability is strictly limited to the pro-rata reduction of 46 Labs' monthly recurring charges. At 46 Labs' discretion, any Product, either originally, or as a replacement, may be new, recertified or refurbished. Any Product supplied by 46 Labs as a replacement Product will carry the remainder of any manufacturer warranty. 46 Labs may also provide any Product upgrades at no expense to Customer, and Customer shall use all such upgrades provided by 46 Labs. 46 Labs shall not replace, and the Customer shall be responsible for the full cost of replacement of 46 Labs-Provided Equipment and phones in the event of damage:

(a) to consumable parts, such as batteries, or protective coatings designed to diminish over time unless failure has occurred due to a defect in materials or workmanship;

(b) to cosmetic damage, including but not limited to scratches, dents, and broken plastic on ports;

(c) to damage caused by use with other products;

(d) to damage caused by accident, abuse, misuse, liquid contact, fire, earthquake or other external causes;

(e) to damage caused by operating the product outside the permitted or intended uses described by 46 Labs;

(f) to damage caused by service (including upgrades and expansions) performed by anyone who is not a representative of 46 Labs;

(g) to a product or part that has been modified to alter functionality or capability without the written permission of 46 Labs;

(h) to defects caused by excessive wear and tear or otherwise due to the excessive aging of the product;

(i) if any serial number has been removed or defaced. 46 Labs and its suppliers shall have no obligation or liability in connection with any equipment not purchased through 46 Labs even if configured by 46 Labs, or for any abuse, misuse or reconfiguration, including, but not limited to, the addition of software or other devices, of any equipment by any party other than 46 Labs.

5.4 Customer-Provided Equipment ("CPE"): Customer may not use equipment that 46 Labs has not certified for use with the 46 Labs Services. Customer is solely responsible for ensuring that CPE complies with the compatibility guidelines published by 46 Labs. If Customer or a third party changes the settings with respect to equipment at Customer's location that 46 Labs uses to provide Service (including, but not limited to, the addition of software or other devices on the LAN), then Customer assumes the risk that the Service may not work. Customer is solely responsible for ensuring the proper functioning of Customer-provided CPE. 46 Labs will not provide any assistance in the setup or configuration of Customer provided CPE at the time of installation. Customer is solely responsible for the management of Customer- provided CPE. 46 Labs' Customer Support Center will not provide any assistance with the configuration or maintenance of Customer- provided CPE.

If 46 Labs dispatches a Field Service Technician in by 46 Labs to be the result of the Customer- provided CPE, 46 Labs will charge Customer for the Field Service Technician dispatch. The Customer will not receive service credits if 46 Labs determines that Customer-provided CPE contributed to the event for which Customer is requesting a credit.
IN ADDITION TO THE WARRANTY DISCLAIMERS ELSEWHERE IN THIS AGREEMENT, 46 LABS EXPLICITLY DISCLAIMS ANY AND ALL WARRANTY OR MAINTENANCE RESPONSIBILITY FOR CUSTOMER-PROVIDED CPE. ANY WARRANTY CLAIMS, MAINTENANCE, OR REPAIRS FOR CUSTOMER-PROVIDED CPE WILL BE THE SOLE RESPONSIBILITY OF THE CUSTOMER.
Customer will not receive Service Level Agreement credits if 46 Labs determines that Customer-provided CPE contributed to the event for which Customer is requesting.

5.5 Customer Cooperation: Provisioning and maintaining Service will require Customer's cooperation, including allowing 46 Labs or its third-party contractors, reasonable and safe access to Customer's premises to activate and support the Service.

6 Confidentiality.

6.1 Definition: "Confidential Information" shall include 46 Labs pricing, trade secrets as defined under applicable law ("Trade Secrets"), and any and all information, whether provided in writing, orally, visually, electronically or by other means, whether or not marked as "confidential" or "proprietary," related to the Services and/or business of 46 Labs, including, but not limited to, the terms and conditions of the Agreement. Confidential Information shall not include information:

(a) already lawfully known to or independently developed by Customer as evidenced

(b) by its written records,

(c) disclosed in published materials, generally known to the public,

(d) lawfully obtained from third parties without any obligation of confidentiality.

 

6.2 Confidentiality Obligation: Customer shall maintain the confidentiality of the Confidential Information and shall use the same level of care, but in no event less than a reasonable standard of care, as it uses to maintain the confidentiality of its own confidential information. Customer shall take reasonable steps to ensure that Customer's personnel, subcontractors, and personnel of such subcontractors, if any, comply with this Section, which steps shall include obtaining enforceable written agreements from Customer's personnel and subcontractors and requiring enforceable written agreements from personnel of subcontractors binding such entities and individuals to obligations of confidentiality no less restrictive than those set forth in this Agreement. Customer agrees that if it is required by law to disclose the Confidential Information, Customer shall first give written notice of such required disclosure to 46 Labs and 46 Labs shall have a reasonable opportunity to prevent or limit the third party disclosure. Customer acknowledges that monetary damages may not be sufficient remedy for unauthorized disclosure or use of Confidential Information and that 46 Labs may seek without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. The obligations under this Agreement shall:

(a) with regard to the Trade Secrets, remain in effect as long as the information constitutes a Trade Secret under applicable law; and

(b) with regard to the Confidential Information, remain in effect during the term of this Agreement and for a period of five (5) years thereafter.


6.3 Customer Confidential Information: 46 Labs' privacy policy, located on the Service Terms knowledge base, details 46 Labs' confidentiality obligations to Customer.

6.4 Non-Disclosure and Publicity: Neither Party shall disclose to any third party the terms and conditions of the Agreement without the prior written consent of the other Party.

7 Representations And Warranties.

7.1 Customer: Customer warrants and represents that:

(a) Customer has full power and authority to enter into this Agreement;

(b) the signatory to this Agreement possesses all necessary authority to enter into this Agreement with 46 Labs in all respects and render it effective; and that Customer shall comply with all applicable federal, state, and local laws, ordinances, regulations and codes in its use of the Services. The laws and regulations include United States export control laws. Customer shall adhere to the laws of foreign countries, particularly if traveling internationally with a device used in conjunction with a 46 Labs Customer represents that the address provided to 46 Labs for billing purposes is either Customer's residential or business street address.


7.2 Telemarketing: Customer further warrants and represents that it will adhere to all federal, state, and local laws, ordinances, regulations, and codes applicable to telemarketing. These laws include, but are not limited to the Federal Trade Commission's Telemarketing Sales Rule ("TSR"), the Federal Communication Commission's Telephone Consumer Protection Act ("TCPA"), and the federal Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Under these laws, Customer's use of the Services may be restricted.
For example, under the TSR, a telemarketer is required to periodically search the National Do Not Call Registry ("DNC Registry") (currently every 31 days) and to avoid placing certain telemarketing calls to those listed in the DNC Registry. A telemarketer's failure to do so could subject the telemarketer to substantial fines (currently up to $16,000 for each call). Other restrictions can include call monitoring, times telemarketing calls are permitted, use of pre-recorded telephone messages, placing "abandoned" calls, advanced called party consent for certain telemarketing calls, calls to cell phones, and disclosures required by law. Use of text messages may be subject to many of the same restrictions as voice calls.

For telemarketing, Customer is solely responsible for obtaining and maintaining written consent for those who may be called, in accordance with applicable law. Customer shall stop calling any party who indicates in any manner that the party withdraws their consent to be called. The telemarketing laws affecting outbound calling have changed over the past several years and are expected to continue to change. This paragraph is not intended to provide you with a complete list of all applicable law. You are strongly advised to consult with an attorney knowledgeable in this area of law prior to using the Services for telemarketing.

7.3 Do Not Call Rules for Telemarketers: Federal Do Not Calls rules require that companies that tele-market or engage in telephone solicitations adhere to the requirements set forth in 47 C.F.R. section 64.1200 (FCC) and 16 C.F.R. Part 310 (FTC), among other laws and regulations. Customer has sole responsibility for ensuring Customer checks the national Do Not Call Registry ("DNC Registry") periodically, as prescribed by law, and is not calling any party on the DNC Registry. Customer is solely responsible that any lead lists / contact lists / automatic dialing lists Customer uses do not violate the TCPA or TSR rules, or any other laws, rules, or regulations. 46 Labs assumes no liability for any such lead list / contact list / automatic dialing list that Customer uploads, downloads or uses, regardless of the source of the list. 46 Labs assumes no liability for any equipment or malfunction of equipment software used to upload, download, block, or dial telephone numbers called by or on behalf of Customer.

7.4 CPN/Pseudo CPN Requirements for Telemarketers: Per the Federal Trade Commission ("FTC"), telemarketers are required to transmit their telephone number to Caller ID services. As such, all telemarketers using 46 Labs commercial services are required to provide CPN/pseudo- CPN in compliance with federal rules.

7.5 Call Recording and Monitoring: Customer further warrants and represents that it will adhere to all federal, state, and local laws, ordinances, regulations, and codes applicable to telephone call monitoring and recording. These laws can differ from state to state. Some state law, such as the California Invasion of Privacy Act, places strict limitations on the recording or monitoring of inbound and outbound telephone conversations.

7.6 Possible Termination or Suspension for Violations of Laws: If 46 Labs determines, in its sole, reasonable discretion that Customer is not adhering to telemarketing laws and regulations, if Customer is harassing individuals or businesses, or if Customer is otherwise violating telecommunications law, 46 Labs may consider such conduct a breach of this Agreement. In such event 46 Labs reserves the right, among other remedies, to suspend or terminate Customer's Service after written notice to Customer.

7.7 46 Labs: 46 Labs warrants that (a) 46 Labs has full power and authority to enter into this Agreement and convey the rights conveyed herein; and (b) the signatory to this Agreement possesses all necessary authority to enter into this Agreement with 46 Labs in all respects and render it effective.

7.8 46 LABS SPECIFICALLY AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER OR THE FACILITIES AND EQUIPMENT FURNISHED PURSUANT TO THE AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. IN NO EVENT SHALL 46 LABS OR ANY AFFILIATED PERSON OR ENTITY BE LIABLE TO CUSTOMER OR ANY AFFILIATED PERSON OR ENTITY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, RELIANCE, COST OF COVER, SPECIAL, PUNITIVE OR SIMILAR OR ADDITIONAL DAMAGES, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, INCURRED OR SUFFERED AS A RESULT OF UNAVAILABILITY, PERFORMANCE, NON- PERFORMANCE, TERMINATION,BREACH, OR OTHER ACTION OR INACTION UNDER THE AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST REVENUES OR PROFITS, LOSS OF ABILITY TO PERFORM, LOST CONTRACTS, COSTS OF THIRD- PARTY REPAIR OR REPLACEMENT, OR FAILURE OF 911 OR OTHER FEATURES, EVEN IF CUSTOMER OR ANY AFFILIATED PERSON OR ENTITY ADVISES 46 LABS OR ANY AFFILIATED PERSON OR ENTITY OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN THE EVENT A VENDOR(S) IS EMPLOYED ON BEHALF OF THE CUSTOMER, THE CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR PAYMENT TO THE VENDOR EMPLOYED WITHOUT CLAIM TO 46 LABS. 46 LABS SHALL NOT BE RESPONSIBLE FOR PAYMENT OF ANY VENDOR CHARGES INCURRED BY CUSTOMER OR ANY OTHER PARTY, WHETHER OR NOT SUCH CHARGES ARE AS A RESULT OF ERROR OR OMISSION BY 46 LABS OR ANY OTHER THIRD PARTY.

IN THE EVENT 46 LABS DISPATCHES A VENDOR, LOCAL EXCHANGE CARRIER OR OTHER TECHNICIAN ON BEHALF OF CUSTOMER, AND IT IS DETERMINED THAT THE DISPATCH WAS DUE TO A CUSTOMER WIRING, EQUIPMENT OR OTHER CUSTOMER RELATED ISSUE, THEN THE CUSTOMER WILL BE RESPONSIBLE FOR PAYMENT OF COSTS INCURRED BY 46 LABS FOR THE DISPATCH. 46 LABS SHALL NOT BE RESPONSIBLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING FROM THE INSTALLATION, MAINTENANCE OR REMOVAL OF EQUIPMENT OR THE PROVISIONING OF SERVICES, AND CUSTOMER HEREBY INDEMNIFIES AND HOLDS HARMLESS.

46 LABS FROM AND AGAINST ANY LIABILITIES INCLUDING ATTORNEY'S FEES ARISING OUT OF SUCH DAMAGE OR INJURY. 46 LABS MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES ARE FREE OF RIGHTFUL CLAIMS BY ANY THIRD PARTY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM 46 LABS, OR ITS EMPLOYEES, CONTRACTORS, OR AGENTS, REGARDING THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER'S REMEDIES FOR CLAIMS UNDER THIS AGREEMENT SHALL BE LIMITED TO OUTAGE CREDITS AS DESCRIBED HEREIN.

7.9 Third Party Sites, Information and Content: For certain 46 Labs Services, including but not limited to dedicated Internet access and wireless data service, Customer will be communicating with and receiving information or data to/from independently owned and operated content providers and/or service providers. 46 LABS IS NOT A PUBLISHER OF THIRD PARTY INFORMATION, APPLICATIONS, OR OTHER CONTENT AND IS NOT RESPONSIBLE FOR ANY OPINIONS, ADVICE, STATEMENTS, OR OTHER INFORMATION, SERVICES OR GOODS PROVIDED BY THIRD PARTIES. Third party content or information providers may impose additional charges. They may have differing terms of use and differing policies, than those of 46 Labs. Customer is solely responsible for all charges from such third party content or information providers and is solely responsible for adhering to the terms and conditions and policies of such third parties. Delays or omission of information or data may occur with respect to third party content or information providers. Neither 46 Labs nor its content providers, service providers, affiliates, or other third parties shall be liable for any loss or injury arising out of or caused, in whole or party, by Customer's use of any information, application or content acquired through any 46 Labs Service.

8 Indemnification.

8.1 46 Labs' Indemnification of Customer: 46 Labs will defend and indemnify Customer, its employees, directors, officers and agents, from and against any suit, proceeding or other claim brought by an entity (not a party to or an affiliate of a party to this Agreement) that is caused by, arises from, or relates to damage to real or tangible personal property or personal injuries (including death) arising out of the gross negligence or willful act or omission of 46 Labs in the provision of Service by 46 Labs.

8.2 Customer's Indemnification of 46 Labs: Customer will defend and indemnify 46 Labs, its employees, directors, officers and agents, from and against any damages, penalties, interest, expenses, liabilities, suit, proceeding or other claim (asserted or threatened) brought by an entity that is caused by, arises from, or relates to:

(a) damage to real or tangible personal property, personal injuries (including death) arising out of the gross negligence or willful act or omission of Customer in the use of the Service;

(b) any fraud arising from Customer's use of the Service;

(c) any failure of Customer to properly collect and/or remit taxes of services ordered hereunder;

(d) representations regarding the nature of Customer's traffic and any use, operation or resale of Service by Customer in contravention of this Agreement, including without limitation, claims of libel, slander, unauthorized use of copyright or trademark by Customer or the business activities and practices of Customer arising from Customer's use of the Service;

(e) Customer's engagement of, or relationship or interaction with, any third party service provider;


8.3 Truth in Caller ID Act Indemnification: Customer shall forever indemnify, defend and hold 46 Labs harmless from any demand, claim, action, proceeding, fine, penalty or assessment brought or initiated by third parties, in their individual capacity, or regulatory agencies or authorities including, but not limited to, the Federal Communications Commission, State Attorneys General, Federal Trade Commission, state regulatory authorities (where concurrent jurisdiction exists) for any alleged or actual violation by Customer or Customer affiliates (collectively "Customer") of the Truth in Caller ID Act. This specific indemnity shall be a blanket indemnification for all consequences, whether known or unknown on the part of 46 Labs or Customer that may befall 46 Labs as a result of any such actual or alleged violation by Customer of the "Act". This indemnification shall include, but not be limited to, any cost of defense incurred response required or documentation requested of 46 Labs due to any such violation of the Act by Customer. In the event parties other than Customer (e.g. Customer's end-users) shall have use of the telecommunications services provided by 46 Labs through Customer, then the Customer agrees to forever indemnify and hold 46 Labs and any third party provider or operator of facilities employed in provision of telecommunications services provided by 46 Labs harmless from and against any and all claims, demands, suits, actions, losses, damages, assessments or payments which those parties may assert relating to any violation of the Truth in Caller ID Act. Customer agrees to reimburse 46 Labs for all reasonable costs and expenses incurred by 46 Labs due to 46 Labs' direct participation (either as a party or witness) in any administrative, regulatory, criminal or civil proceeding concerning Customer if 46 Labs' involvement in said proceedings is based upon Customer's actions or inactions resulting in a violation of the Truth in Caller ID Act.

8.4 Intellectual Property: If a Service provided by 46 Labs becomes, or if 46 Labs reasonably believes a Service it is providing may become, the subject of a suit, proceeding or other claim by an entity (not a party to or an affiliate of a party to this Agreement) that the Service directly infringes the U.S. patent, trademark or copyright rights ("Intellectual Property') of such entity, 46 Labs shall, at its own expense and option:

(a) procure the right for 46 Labs to continue to provide the Service;

(b) modify or replace the Service with a different service that has substantially similar functionality;

(c) discontinue providing or direct the cessation of any use of the Service and refund to Customer a prorated portion of any charges paid for the affected Service through the date of Service discontinuation or cessation.


Notwithstanding the foregoing, 46 Labs will have no obligation to defend or indemnify Customer, and Customer will defend, indemnify and hold harmless 46 Labs for any suit, proceeding or claim arising out of: Customer's:

(a) designs, specifications, modifications, or configurations;

(b) combination of Customer hardware or software, or other materials, services or methods with the Service;

(c) use, operation or resale of the Service in contravention of its obligations and responsibilities.

8.5 Procedure: If an entity makes a claim against 46 Labs or Customer, the Party in receipt of such claim ("Indemnified Party") will promptly notify the other Party ("Indemnifying Party") in writing no later than sixty (60) days after receipt of such notification of a potential claim. The Indemnifying Party may assume sole control of the defense of such claim and all related settlement negotiations. The Indemnified Party will provide the assistance, information and authority necessary to assist the Indemnifying Party in its obligations. Neither 46 Labs nor Customer may settle any such matter without the consent of the other as to any settlement that imposes an obligation on, or requires any admission by, the other Party. Failure of the Indemnified Party to promptly notify the other will not relieve the Indemnifying Party of its obligations except to the limited extent such delay prejudices the Indemnifying Party.

Additionally, if the Service as and in the manner provided by 46 Labs is determined by a court of competent jurisdiction to have directly infringed on an entity's Intellectual Property rights, or if such claim is settled, 46 Labs shall indemnify Customer for its reasonable legal fees incurred to defend itself against such claim up to and including the time of final disposition or settlement of such claim and any payment required to be made by Customer pursuant to such judgment or settlement.

8.6 Survival: These Customer and 46 Labs indemnifications will survive this Agreement.

9 Limitations on Liability.

9.1 Underlying Carriers: 46 Labs is not liable for any act or omission by any other company or companies furnishing a portion of the Services to Customer.

9.2 Direct Damages: Even if advised of the possibility of losses or damages, 46 Labs Communications shall not be liable, except as set forth herein, for any losses or damages resulting from:

(a) its provisioning of Service to Customer, including but not limited to any act or omission of Customer, those using the Customer's Service or third party entities furnishing products used in connection with Service;

(c) the loss or destruction of Customer data resulting from the use of Service;

9.3 Limitation of 46 Labs Communications Liability for Direct Damages: 46 Labs Communications' liability to Customer for any damage, including but not limited to property damage to Customer premises, service outages/problems, and personal injury, shall in no event be greater than an amount equal to the sum of the payments made by Customer to 46 Labs Communications during the three months immediately preceding the event for which losses or damages are claimed. By entering into an Agreement and remaining a Customer, Customer manifests its acceptance of this limitation on direct damages as fair and reasonable.

9.4 Indirect or Consequential Damages: Neither 46 Labs Communications nor Customer shall be liable to the other for any indirect, incidental, exemplary, punitive or other consequential damages, whether or not foreseeable, including, but not limited to, damages from the loss of data, business goodwill or profits, savings or revenue, harm to business, whether under contract, tort, including negligence, strict liability or any other theory of liability. A party's out-of-pocket costs for damages recovered by a third party shall be deemed to be indirect damages suffered by such party, except to the extent such damages are part of a claim for which indemnification is due under Section 7.

9.5 Service Interruptions: 46 Labs Communications' sole liability under this Agreement for interruption of service or failure of equipment shall be limited to that amount of 46 Labs Communications' actual fixed charges incurred by Customer during the period of such interruption. 46 Labs Communications shall not be liable for any interruption caused by the negligence or willful act or omission of Customer or any third party furnishing any portion of the services hereunder. Notwithstanding anything to the contrary, Customer's sole and exclusive remedy for any service related claim will be set forth in each applicable 46 Labs Communications standard Service Level Agreement ("SLA"), which are available for review on the Service Terms knowledge base.

9.6 Delays: 46 Labs Communications shall not be liable to Customer for losses or damages resulting from its inability to provide Service or from any delay in meeting a scheduled Start of Service Date or a scheduled change in service date.

9.7 Force Majeure Events: In no event shall either Party have any claim or right against the other Party for any failure of performance (except for 46 Labs Communications' right to seek payment of all accrued charges) due to causes beyond that Party's reasonable control including, but not limited to: acts of God, earthquake, fire, explosion, vandalism, fiber optic cable cut, storm, flood or other similar catastrophes; any law, order, regulation, direction, action or request of the United States Government, or of any other government, including state and local governments having or claiming jurisdiction over either of the Parties or of any department, agency, commission, court, bureau, corporation, or other instrumentality of any one or more said governments, or of any civil or military authority; national emergencies; unavailability of materials or rights-of-way; insurrections; acts of terrorism; riots; wars; strikes; lock-outs, work stoppages or other labor difficulties; actions or inactions of third party providers or suppliers; or supplier failures, shortages, breaches or delays.

9.8 Facilities, Services, Equipment or Systems of Others: 46 Labs Communications shall not be liable for the unavailability, or deficient performance, of any facilities, services, equipment or systems used in connection with the provision of Services that are under the control of Customer or any third party, even if 46 Labs Communications has acted as the Customer's agent in procuring such facilities, services, equipment or systems from third parties. Customer's rights with regard to the unavailability or deficient performance of such facilities, services, equipment or systems not provided by 46 Labs Communications shall be strictly as established by the supplying entity. Customer shall be liable to 46 Labs Communications for any loss, theft, or damage to any of 46 Labs Communications' equipment located on Customer's premises, however caused.

9.9 Passwords: Customer will be asked to create a password in order to gain access to Customer's account information on-line or when contacting a 46 Labs Communications agent by phone. Customer agrees to keep all passwords and account information confidential and Customer is solely responsible for any liability or damages resulting from Customer's failure to maintain that confidentiality, and for all activities that occur under Customer's password. Customer must immediately notify 46 Labs Communications if Customer suspects any breach of security such as loss, or unauthorized disclosure or use of Customer's password and account.

9.10 Electronic Recording: Customer acknowledges and understands that there are federal and state statutes governing the electronic recording of telephone conversations and that 46 Labs Communications will not be liable for any illegal use of the service. Because Customer circumstances vary widely, Customers should carefully review their own circumstances when deciding whether to use the recording features of the service. It is the Customer's sole responsibility i) to determine if the electronic recordings are legal under the applicable federal and state statutes and regulations, and ii) to fully comply with all such applicable federal and state statutes and regulations. 46 Labs Communications expressly disclaims all liability with respect to Customer's recording or monitoring of telephone conversations. 46 Labs Communications is not responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings or monitoring conversations or the use of its products by Customer whether legal or illegal. Customer shall fully hold 46 Labs Communications harmless and indemnify 46 Labs Communications from all damages and/or liabilities or potential liabilities arising from or related to Customer's unlawful recording or monitoring of any telephone conversation using 46 Labs Communications' service.

9.11 Customer's Failure to Fulfill Obligations: 46 Labs Communications shall not be liable to Customer or any third party for Customer's failure to fulfill its obligations, including, without limitation, Customer:

(a) obtaining, installing and maintaining all necessary equipment, materials, and supplies for interconnecting Customer or third party facilities, services, equipment or systems to Services;

(b) securing all licenses, permits, approvals, rights-of-way, access rights, including ingress and egress from buildings, and other arrangements necessary to install, receive and use Services;

(c) ensuring that Customer or third-party facilities, services, equipment or systems interface properly with Services; that the signals delivered to 46 Labs Communications' Service are fully compliant with industry standards; and that such signals do not damage 46 Labs Communications property or personnel, or degrade Service to other Customers of 46 Labs Communications;

(d) Customer use of non-approved Services.

9.12 Misuse of Customer Service: 46 Labs Communications shall neither provide credit allowances nor otherwise be liable for the use, misuse or abuse of Customer's Service by Customer, its agents, employees or any third parties including, without limitation, members of the public. If 46 Labs Communications co- operates with Customer by recommending potential solutions to reduce or eliminate the unauthorized use of Customer's Service, 46 Labs Communications' recommendation shall not be deemed to be promises or guarantees by 46 Labs Communications that the unauthorized use of Customer's Service will be reduced or eliminated, and in no event shall 46 Labs Communications incur any liability in connection with those undertakings to Customer or any third party. In all instances, the Customer shall be responsible for its facilities, services, equipment or systems interconnected with 46 Labs Communications' Service. Customer shall be responsible for maintaining the security of any networks that Customer controls, including, but not limited to, local area networks, private networks, and/or virtual private networks.

9.13 Billing Errors: 46 Labs Communications' obligation with respect to any errors resulting in Customer overpayments for Service is limited to granting invoice credits equal to the dollar amounts erroneously billed. Under no circumstances will any billing error affect the Customer's obligation to pay for Services rendered and used.

9.14 911 Limitation of Liability: Customer is solely responsible for its interaction and relationship with any third party provider that it may engage for any purpose. If Customer has a dispute with a third party service provider, Customer agrees that 46 Labs Communications is not liable for any claims or damages arising out of or connected with such dispute. 46 Labs Communications reserves the right, but has no obligation, to monitor any such dispute. Neither 46 Labs Communications nor its underlying carriers, or any other third parties involved in the routing, handling, delivery, or answering of emergency services or in responding to emergency calls, nor their officers or employees, may be held liable for any claim, damage, loss, fine, penalty or cost (including, without limitation, attorneys' fees), and Customer hereby waives any and all such claims or causes of action, arising from or relating to the provision of all types of emergency services to Customer. Customer further indemnifies and holds 46 Labs Communications harmless from any claim or action for any caller placing such a call without regard to whether the caller is an employee of the Customer. Customer holds harmless and indemnifies 46 Labs Communications from any claim or action arising out of mis-routes of any 911 calls, or whether local emergency response centers or national emergency calling centers answer a 911 call or how the 911 calls are handled by any emergency operator, including operators of the national call center. The limitations apply to all claims regardless of whether they are based on breach of contract, breach of warranty, product liability, tort or any other theories of liability.

9.15 Third-Party: Customer is solely responsible for its interaction and relationship with any third party provider that it may engage for any purpose. If Customer has a dispute with a third party service provider,
Customer agrees that 46 Labs Communications is not liable for any claims or damages arising out of or connected with such dispute. 46 Labs Communications reserves the right, but has no obligation, to monitor any such dispute.

10 Term and Termination.

10.1 Term: The term of the Agreement shall commence on the Start of Service Date and shall continue for the term as set forth in the applicable SO. After such initial term, the Agreement shall automatically renew for successive one-year terms unless terminated in writing by 46 Labs Communications or by Customer via mail pursuant to this Agreement. Unless otherwise stated, the initial term shall be thirty-six (36) months. The termination of the Agreement shall have the effect of terminating each SO. At the discretion of 46 Labs Communications, an individual SO may be terminated without terminating the Agreement.

10.2 Termination: 46 Labs Communications may elect in its sole discretion to terminate this Agreement and any outstanding SO(s) immediately for any reason enumerated under Section 2.6 above. 46 Labs Communications may terminate this Agreement or any SO(s), at its option upon providing Customer with written notice of such election. In such event, the effective date of the termination shall be thirty (30) days from the date of such notice. 46 Labs Communications shall not be liable to Customer or any third party for any reason for terminating or suspending Customer's use of or access to the Services. Customer may cancel the Service by emailing 46 Labs Communications at accounting@46labs. com , AND by giving written notice to 46 Labs Communications (as provided below in paragraph 10.3, "Notice"), with the words "Attention: Disconnection Department, Service Disconnection Request" prominently written on the outside of the envelope, no less than forty- five (45) days prior to the effective date of such cancellation.
REGARDLESS OF WHETHER A THIRD PARTY PORTS THE CUSTOMER'S PHONE NUMBER TO A NEW SERVICE, SERVICES WILL CONTINUE TO BE DELIVERED AND BILLED THROUGH THE DISCONNECTION PERIOD FOLLOWING A PROPER NOTICE OF DISCONNECTION.
46 Labs Communications shall begin the disconnection process upon receipt of notification from the Customer. The disconnection process shall not begin until all Toll Free numbers have been removed from the Customer's services. Charges shall continue until 46 Labs Communications and any underlying carriers complete the disconnection process, or 45 days, whichever is later. 46 Labs Communications recommends Customer ensures any replacement services are operational before requesting disconnection, as 46 Labs Communications is not responsible for any interruption or failure of service once disconnection has been requested by Customer. Once disconnection has been requested, service may disconnect at any time without prior notice to Customer. If the effective date of cancellation is prior to the end of the Minimum Term, or any renewal term, Customer shall pay 46 Labs Communications an early termination charge as defined in paragraph 3.17, "Early Termination Liability."

10.3 Notice: All notices, demands, consents, requests, approvals, Customer name and address changes, billing inquiries and requests, authorizations, or other communication which Customer is required or desires to give or make to 46 Labs Communications shall be in writing and shall be effective i) immediately upon hand delivery, ii) on the next business day if sent by a generally recognized overnight delivery service (subject to confirmation of receipt from the service), or iii) on the date received if sent by United States certified or registered mail, return receipt requested. Any faxed notice must be followed up with a written notice which is either hand-delivered; mailed either certified or registered mail; or delivered by a reputable overnight carrier, as per the above. Such Notices shall be sent to the address or fax number of 46 Labs Communications as set forth below:
By Mail to:
46 Labs Communications
Attn: Support
1503 E. 19th St
Edmond, OK 73013

By Fax to:
46 Labs Communications
Attn: Support
1-405-340-1001

By E-mail to:
46 Labs Communications
support@46labs.com
Notices to Customer shall be sent to the email or billing mailing address on file in the 46 Labs Communications billing system. Rate change notices may be delivered by 46 Labs Communications to Customer by email or facsimile and shall be deemed to be delivered when received by Customer

11 Miscellaneous Provisions.

11.1 Entire Agreement: This Agreement, including the Terms, any underlying SOs, any supplemental product terms and conditions, and AUPs, shall constitute the entire agreement between the Parties with respect to the subject matter of this Agreement and supersede all prior statements, agreements, discussions, proposals, representations or warranties, whether written or oral, on this subject matter, and there are no representations or promises which are not expressly set forth herein. No statement, representation or warranty made by any agent or representative of 46 Labs Communications regarding the Services, facilities or equipment to be provided hereunder or the rates therefore shall be binding upon 46 Labs Communications unless expressly included herein.

11.2 Compliance With Law: In conjunction with the Agreement, each Party shall at all times comply with all applicable federal, state, and local statutes, ordinances, regulations and orders of any commission or other government body.

11.3 Change of Contact Information: Customer acknowledges that it is Customer's sole responsibility to supply immediate notice to 46 Labs Communications if Customer changes any of its contact information. If at any time Customer's name or billing information changes from that which is set forth below, Customer shall have five (5) days to inform 46 Labs Communications of such changes in accordance with the Notice provisions set forth in the Agreement.

11.4 Relationship of Parties: Neither the Agreement nor the provision of Service hereunder shall be deemed to create any joint venture, partnership or agency between 46 Labs Communications and Customer; the Parties are independent contractors and shall not be deemed to have any other relationship. Neither Party, nor any agent or representative of either Party, shall have, or hold itself out as having the power or authority to bind or create liability for the other Party by its intentional or negligent act and no claimed act of authority shall have any binding effect.

11.5 Amendment: Except as otherwise provided herein, the terms and conditions of this Agreement may not be modified or amended other than by a document that expressly states its intention to modify this Agreement, and such document is signed by hand in ink by both Parties.

11.6 Signature Authority: 46 Labs Communications shall not be bound by the terms of any SO, or any supplemental document or agreement of any kind, unless signed by hand in ink by an Officer of 46 Labs Communications.

11.7 Survivability: The terms and conditions contained in the Agreement that, by their sense and context, are intended to survive the performances of the Parties shall survive the completion of those performances and the Agreement's termination. These include, without limitation, the making of payments due under the Agreement.

11.8 Governing Law, Jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of the State of Oklahoma without reference to its principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods ("CISG") shall not apply. Customer and 46 Labs Communications both hereby irrevocably agree that any suit brought by either Party arising out of or relating to this Agreement shall be brought exclusively in the United States District Court for the Western District of Oklahoma, and Customer and 46 Labs Communications both hereby submit to the personal jurisdiction of such courts. The Parties both hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which either Party may raise now, or hereafter have to the laying of the venue of any such suit, action or proceeding brought in such a court and any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum.
THE PARTIES HEREBY EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY A PARTY AGAINST THE OTHER PARTY RELATING TO THIS AGREEMENT.
In the event an action is brought or an attorney is retained by either Party to enforce the terms of this Agreement or to collect any money due hereunder, the prevailing Party will be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorney's fees, court costs, reasonable costs of investigation and other related expenses incurred in connection therewith.

11.9 No Waiver: Neither 46 Labs Communications' nor the Customer's failure, at any time, to enforce any right or remedy of the Agreement will be interpreted as a waiver of such Party's right to enforce each and every provision of the Agreement in the future. No waiver of any provision of this Agreement, or any rights or obligations of either Party under this Agreement, shall be effective, except pursuant to a written instrument signed by the Parties waiving compliance, and any such waiver shall be effective only in that specific instance and for the specific purpose stated in such writing.

11.10 Severability: In the event any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid, illegal or unenforceable by a court with jurisdiction over the Parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intention of the Parties in accordance with the applicable law, and the remainder of this Agreement shall remain in full force and effect. The illegality or unenforceability of any provision of this Agreement does not affect the legality or enforceability of any other provision or portion of this Agreement.

11.11 Assignment: 46 Labs Communications may assign in whole or in part its rights or duties under the Agreement without prior notice to Customer and upon such assignment 46 Labs Communications shall be released from all liability hereunder. Customer may assign the Agreement only with 46 Labs Communications' prior written consent. Subject to these restrictions, the Agreement shall inure to the benefit of and be binding upon the heirs, successors, subcontractors, and assigns of the respective Parties.

11.12 Purchase Order: A Customer purchase order or similar document is evidence only of Customer's intention to purchase Services. Except for a properly signed, written provision specifically evidencing 46 Labs Communications' intent to be bound by the terms and conditions of a purchase order between Customer and 46 Labs Communications, the terms and conditions of a Customer purchase order or similar document will be disregarded and have no force or effect; instead, the terms and conditions of the Agreement between Customer and 46 Labs Communications will govern.

11.13 No Third-Party Beneficiaries: Except to the extent explicitly provided, this Agreement and any SO(s) is being executed for the sole and exclusive benefit of 46 Labs Communications and Customer and is not for the benefit of any third parties. The execution of the Agreement and any SO(s) shall not creat

11.14 Interpretation: Neither this Agreement nor any SO may be construed or interpreted for or against 46 Labs Communications because 46 Labs Communications drafted any of its provisions.

11.15 Headings: Headings contained herein are provided for reference and convenience only. Headings do not affect or limit the interpretation, contents or terms of this Agreement.

11.16 Execution in Counterparts and by Facsimile: The Parties hereby acknowledge that any SO may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument. The Parties intend that any counterpart copy signed and exchanged (including signed counterparts exchanged via facsimile or email) shall be fully binding as an original handwritten executed copy and all such copies together shall constitute one instrument.