CORTEL TECHNOLOGIES, LLC
CLOUD SERVICES TERMS & CONDITIONS
Cortel Technologies, LLC is a provider of on-demand, cloud-based communications services and advanced applications, who desires to provide such services to Customer.
By executing the Cortel Technologies Cloud Services Agreement, both Parties agree as follows:
All notices will be sent in writing via electronic mail to the addresses outlined as follows:
For Cortel Technologies:
Rate Notification - to be sent to customer’s “Main Contact E-Mail” as written on signed Cortel Technologies Cloud Services Agreement. Customer may send changes or updates to this email to firstname.lastname@example.org.
Invoice Delivery - to be sent to customer’s “Main Contact E-Mail” as written on signed Cortel Technologies Cloud Services Agreement. Customer may send changes or updates to this email to email@example.com.
Customer agrees to maintain accurate contact information for all business notifications, including any changes to the Invoice Delivery Email Address or the Rate Notification Email Address.
2.1 Services. Cortel Technologies will provide Customer with the services as specified in the Cortel Technologies Cloud Services Agreement to route communications, including associated applications and content (“Traffic”), as services are available, in a commercially reasonable manner consistent with industry standards and the terms of this Agreement. Nothing in this Agreement will inhibit the right of Cortel Technologies to deploy, upgrade, migrate and maintain its network or Services in its sole discretion. Cortel Technologies will send Customer an email notice (sent manually or automatically generated) that the Services are available and will coordinate with Customer to sufficiently test these Services to the extent required by the Customer.
2.2 Interconnection. Customer is responsible for obtaining and paying for any facilities to interconnect with Cortel Technologies Cloud Services. Each Party will use commercially reasonable efforts to coordinate the identification, investigation, and migration of real-time Traffic flow problems and assist with the isolation and repair of any network failure, but will have no responsibility or liability related to the other Party’s facilities or networks under any circumstances. Customer agrees to allow Traffic to route over separate unique trunk groups as required by Cortel Technologies in its sole discretion.
2.3 Network and Traffic Integrity.
2.3.1 Cortel Technologies reserves the right, in its sole discretion and without liability, to temporarily suspend any Services if Cortel Technologies reasonably suspects that Customer is engaged in an activity, which may potentially disrupt or harm Cortel Technologies’ network or facilities. Cortel Technologies will use commercially reasonable efforts to provide advance written notice of suspension.
2.3.2 Cortel Technologies provides its Services subject to the condition that Customer will not use the Services for any unlawful purposes. Cortel Technologies reserves the right, in its sole discretion and without liability, to temporarily suspend or permanently terminate any Services, in whole or in part, and initiate any other appropriate action to minimize risk of fraud and protect Customer and Cortel Technologies, if Cortel Technologies determines or reasonably suspects: (i) fraud, abuse or misuse on Customer’s account; (ii) an unusually high volume of calls to invalid destinations, of a duration of less than twelve (12) seconds, or with high attempted calls-per-second on Customer’s account in any twenty-four (24) hour period; or (iii) use of the Services violates any applicable law. Cortel Technologies will provide written notice of suspension or termination as soon as commercially reasonable and will work with Customer to determine the validity of any such activity.
Each Party agrees to (i) not alter, conceal, modify, delete, re-originate or re-classify originating calling party information, originating ANI, originating point codes, nature of address, other signaling information, or call detail in any manner; or (ii) not make long distance traffic appear to be local traffic or local traffic appear to be long distance traffic. Any violation of this Section constitutes a material breach of the Agreement.
2.3.3 Customer agrees to assume responsibility for any and all Traffic sent from Customer’s connection to Cortel Technologies, including without limitation any instances in which a third-party hacks into Customer’s network to send traffic to any destinations with increased risk of fraudulent traffic. To mitigate the risks associated with such events, Customer will notify Cortel Technologies immediately of any unauthorized use of Customer account or other breach of security.
2.4 Disputes. Except for invoices disputed by the Customer sending an email to firstname.lastname@example.org, if Customer does not report a dispute within one (1) year of when the disputed activity occurred, Customer is deemed to have waived all rights associated with the dispute; provided that this limitation does not change any right to enforce against any repeated or continuing activity being disputed. The Parties agree to provide written notice of any dispute with sufficient detail and documentation regarding the nature and timing of the dispute to efficiently resolve the dispute. If the Parties cannot reach a resolution within thirty (30) days using commercially reasonable efforts, the dispute will be escalated to a representative from each Party at the Director level or above for an additional thirty (30) days. If the Parties cannot resolve a dispute through this informal dispute resolution after sixty (60) days, a Party may submit the dispute for binding arbitration with a sole arbitrator in accordance with the rules established by the American Arbitration Association (“AAA”). The Parties agree to conduct all arbitration's in the State of New Jersey, unless the Parties mutually agree otherwise. The Parties agree that the arbitrator will be knowledgeable about the subject matter of the Dispute, will control the scheduling so as to process the matter expeditiously, and will only have the authority to make decisions permitted by the terms of this Agreement, including without limitation any limitations of liability of the Parties. The decision of the arbitrator will be final and binding on all parties, may only be appealed for mistakes of law, and will be entered in any court having jurisdiction for rendering of judgment.
3. TERM AND TERMINATION
3.1 Term. This Agreement will commence on the Effective Date and will continue for the period of months stated on the Cortel Technologies Cloud Services Agreement (“Term”), at which point the Agreement will automatically renew on an annual basis. Following the initial Term, either Party may provide thirty (30) days’ written notice of termination if desired, provided that any applicable Service Terms, Bundle Terms or Commitment Terms have expired or are terminated pursuant to the applicable attachment.
3.2 Satisfaction Guarantee. If Customer is not completely satisfied with the Services provided during the first forty-five (45) days after the Effective Date for Cortel Technologies Cloud Services, Customer may terminate contract upon payment of any outstanding monies due for Cortel SIP Services. Notwithstanding any other term of the Agreement, if Customer exercises the Satisfaction Guarantee, then: (i) such exercise will immediately trigger disconnection of all Customer Services, cancellation of all orders, and termination of this Agreement without any additional liability by either Party; and (ii) this cancellation refund will be Customer’s exclusive remedy for any and all claims under the Agreement. Under no circumstances will the Satisfaction Guarantee apply to any third-party charges associated with Customer Premise Equipment or any non-recurring or set-up charges for Cortel Technologies Cloud Services.
3.3 Events of Termination. Each Party will have the right to immediately terminate this Agreement without liability if the other Party: (i) fails to cure a material breach of this Agreement after expiration of all applicable notice and cure periods, which will be thirty (30) days after written notice if not otherwise set forth herein; or (ii) ceases to be actively engaged in business or becomes financially incapable of fulfilling its obligations under this Agreement. Termination under this Section will be a nonexclusive remedy for breach without prejudice to any other right or remedy of such Party.
3.4 Customer’s Material Breach. Upon any uncured material breach by Customer or failure by Customer to make undisputed payments by the Due Date, Cortel Technologies will have the additional option to immediately: (i) suspend the Services without liability; (ii) cease accepting or processing orders for the Services; (iii) cease generating call detail information for Customer; (iv) enforce any security interest or assurance provided by Customer; and (v) pursue such other appropriate legal or equitable remedy or relief.
3.5 Survival. The rights and obligations, which by their nature should survive the Agreement, will survive termination or expiration of this Agreement. These Sections would include without limitation Sections 4, 6, 7, 8, and 9.
4. RATES, BILLING AND CREDIT TERMS
4.1 Rates. Cortel Technologies will provide the rates for services in the applicable Cortel Technologies Cloud Services Agreement and the associated Standard International Outbound (Termination) table. To initiate any changes in rates, including any overage charges, Cortel Technologies will either (i) provide Customer with a revised Cortel Technologies Cloud Services Agreement, or (ii) notify Customer via email notification at least thirty (30) days prior to the intended effective date. Customer agrees to be bound by the then-effective rates for services. Customer’s delivery of Traffic using Cortel Technologies Cloud Services after the effectiveness of a Rate Notification will be deemed acceptance by Customer of the changes to the Rates.
4.2 Billing and Credit Terms. The provision of Service by Cortel Technologies under this Agreement will be subject to the Cortel Technologies Cloud Services Terms and Conditions, which Cortel Technologies reserves the right to amend from time to time.
5. WARRANTY DISCLAIMER.
5.1 Warranty Disclaimer. CORTEL TECHNOLOGIES DOES NOT WARRANT THAT USE OF SERVICES OR ACCESS TO SYSTEMS WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, EACH PARTY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.1 Each Party will indemnify, defend and hold harmless the other Party and its officers, directors, employees and agents, from and against any and all loss, damages finally awarded, settlement, costs or expense (including reasonable attorney’s fees and court costs) resulting from or arising out of any third party claim which: (i) arises from a material breach by the indemnifying Party of any obligation, representation or warranty under this Agreement; (ii) is related to any fine, fee or penalty for negligence, property damage, personal injury, product liability, misrepresentation, misuse, acts or omission arising from activities performed in connection with this Agreement by the indemnifying Party; or (iii) alleges that the Services or Traffic infringe, misappropriate or violate any patents, trademarks, copyrights or other intellectual property rights of persons, firms or entities who are not parties to this Agreement.
6.2 Exclusions. Cortel Technologies will have no obligations with respect to infringement of intellectual property to the extent any claim arises from Customer: (i) using Services in combination with data, products, programs, services or equipment not authorized by Cortel Technologies in writing; (ii) not complying with specifications or directions provided by Cortel Technologies; or (iii) failing to use replacement technology or services provided by Cortel Technologies to avoid an infringement claim.
6.3 Notice and Assistance. Each Party will provide prompt written notice of any claim for which the other Party may have an indemnification obligation pursuant to Section 6 and will provide the other Party with reasonable assistance in defending such claim.
6.4 SOLE REMEDY. THE FOREGOING ARE CORTEL TECHNOLOGIES’ SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
7. LIMITATIONS OF LIABILITY
7.1 EXCEPT FOR LATE FEES PROVIDED FOR IN CORTEL TECHNOLOGIES BILLING AND CREDIT POLICIES, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR REVENUE, LOST SALES, BUSINESS INTERRUPTION, OR COST OF SUBSTITUTED FACILITIES, EQUIPMENT OR SERVICES, OR ANY AMOUNT PREVIOUSLY EXPENDED IN CONNECTION WITH THIS AGREEMENT, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, NEGLIGENCE OR TORT, INCLUDING STRICT LIABILITY.
7.2 TOTAL LIABILITY. IN NO EVENT WILL CORTEL TECHNOLOGIES’ AGGREGATE LIABILITY TO CUSTOMER FOR CLAIMS, ACTIONS, LIABILITIES OR EXPENSES ARISING FROM, OR IN CONNECTION WITH, THIS AGREEMENT EXCEED THE AMOUNT OF PAYMENTS ACTUALLY RECEIVED BY CORTEL TECHNOLOGIES FOR SERVICES DURING THE TWO (2) MONTHS IMMEDIATELY PRECEDING THE EVENT FROM WHICH LIABILITY AROSE, OR FIFTY THOUSAND DOLLARS ($50,000.00), WHICHEVER AMOUNT IS LESS.
8. PROPRIETARY RIGHTS
8.1 If the use of any Services is subject to the requirements under the Health Insurance Portability and Accountability Act (“HIPAA”), Customer must notify Cortel Technologies via email@example.com within two (2) business days of the Effective Date, to receive a Business Associate Agreement. If Customer has not executed the Business Associate Agreement within fifteen (15) days of the Effective Date, Cortel Technologies reserves the right to suspend the Cortel Technologies Cloud Services, until such time that the Business Associate Agreement is executed.
9. GENERAL PROVISIONS
9.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of New Jersey without reference or application of conflict of law rules. The Parties consent exclusively and irrevocably to the jurisdiction and venue of any competent court in New Jersey for any legal action arising under this Agreement, and expressly waive any right to a jury trial.
9.2 Assignment. Customer may not assign this Agreement without prior written consent of Cortel Technologies, which will not be unreasonably withheld, except that Customer may assign the Agreement pursuant to any sale or transfer of substantially all of the business, subject to Cortel Technologies approving the credit of any surviving entity. The terms and conditions contained in the Agreement will bind and inure to the benefit of the Parties and their respective successor and assigns. Any attempt to assign this Agreement, without such consent, will be null and void.
9.3 Force Majeure. Except for Customer’s obligation to pay for Services rendered under this Agreement, neither Party will be responsible for any failure or delay in its performance under this Agreement, in whole or in part, due to causes beyond its reasonable control, including but not limited to: acts of God, fire, explosion, vandalism, earthquake or other natural occurrences; any law, order, regulation, action or request of any government entity; any civil or military authority; or any national emergencies, riots, or wars.
9.4 Attorneys’ Fees and Costs. In the event of any litigation or arbitration related to this Agreement, the prevailing party shall be entitled to all reasonable and documented attorneys’ fees, costs, and expenses relating to the matter regardless of whether the Agreement or any relevant provision is held to be invalid.
9.5 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect, if the essential provisions of this Agreement for each party remain valid, legal, and enforceable.
9.6 Waiver. The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of any provision in this Agreement.
9.7 Change of Law. In the event, any federal or state legislative or regulatory body or a court of competent jurisdiction issues a law, rule, regulation, or decision changing any material term of this Agreement, including, but not limited to, making a Service illegal or impractical on a commercially reasonable basis without unreasonable risk of liability, then upon thirty (30) days written notice Cortel Technologies may modify the affected terms of this Agreement to comply with the changes. If Customer can demonstrate that any such modifications are materially adverse in nature, Customer will have the right to terminate any affected Service(s) upon thirty (30) days written notice to Cortel Technologies with no additional liability.
9.8 Applicable Law. Each Party will perform its obligations and assert its rights under this Agreement in accordance with all applicable laws and regulations. Each Party is solely responsible for obtaining all licenses, approvals and regulatory authorities necessary for its use or provision of any service associated with this Agreement.
9.9 Entire Agreement. This Agreement constitutes the complete understanding and agreement of the Parties and supersedes all prior or contemporaneous agreements, communications or understandings, oral or written, relating to the subject matter in this Agreement. The rights and obligations of the Parties will inure to any affiliates performing any obligation or exercising any right under this Agreement and may be directly enforced by or against such affiliates. Except as otherwise set forth in this Agreement, any waiver or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the Parties. The Parties agree to read this Agreement together with any materials issued by Cortel Technologies in conjunction with the provision of service to avoid inconsistent interpretations.