Blue Mogul Terms of Service
The acceptance of this Terms of Service Agreement (Agreement) constitutes a contract between Blue Mogul Enterprise, LLC (“Company”,”we,” “us” or “BM” ) and the customer (“you,” “user” or “Customer”) for enhanced data service(s) (Service). Customer and BM are collectively referred to herein as the “Parties”. By ordering the Service, you acknowledge that you have read this Agreement and understand and accept the conditions. Furthermore, you represent that you are of legal age and mind to enter into this Agreement and become bound by its terms.
SECTION 1 – DEFINITIONS
The terms used in this Agreement shall have their normal or common meaning or the meaning as defined in the text hereof, except that the following terms shall have the following meanings for the purpose of this Agreement:
Agreement “Agreement” shall mean this Master Service Agreement, including any schedules, appendices, tariffs, and documents attached hereto and made a part hereof, or incorporated herein by reference as well as any written amendments to this Agreement which have been signed by the authorized representatives of the Parties.
Service “Service” shall mean BM provided enhanced data service(s), as further described and / or specifically identified on the Service Order. Enhanced data service(s) is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before Federal and State telecommunications regulatory agencies.
Service Order “Service Order” shall mean any applicable service ordering form provided by BM and entered into by the Parties pursuant to this Agreement.
Network “Network” shall mean the data network of one of the Parties, as the context of the provision requires or as contemplated under this Agreement.
On-Net Services “On-Net Services” shall mean those Services which connect two (2) locations served by BM’s Network. On-Net Services are provided entirely by BM.
Off-Net Services “Off-Net Services” are those where one or both locations to be connected are not served by BM’s Network and therefore a portion of the Services is provided by another service provider.
Emergency Maintenance “Emergency Maintenance” shall mean maintenance which, if not accomplished promptly by BM, could result in a serious degradation or loss of Service to the Customer or the End User or damage to BM’s Network or its customers.
Planned Service Outage “Planned Service Outage” shall mean any service outage caused by scheduled maintenance or planned enhancements or upgrades to the BMNetwork.
End User “End User” shall mean a user to whom Customer will provide Services utilizing, in part, the Services provided by BM to Customer under this Agreement.
SECTION 2 – SERVICE
Service Order and Services BM shall provide to Customer the Service(s) Customer has specifically contracted for on the applicable Service Order. The Parties may add other Services to this Agreement by entering into additional Service Orders.
VoIP Origination Service Voice over Internet Protocol Origination (“VoIP Origination”) is a Service that allows calls originating from the public switched telephone network (“PSTN”) in various markets to access the Customer through BM’s Network using direct inward dial (“DID”) numbers either provided by BMto Customer or ported to Customer using local number portability (“LNP”). Customer understands and agrees that BMshall have no liability whatsoever associated with Customer’s use of the public Internet for access to BM’s VoIP Origination Service or otherwise, including without limitation with respect to any failure, delay, loss of data or other damages or losses.
Intended Use of Service Notwithstanding, that Customer may actively be engaged in, or may become actively engaged in, providing enhanced data services. BM’s VoIP Origination Service is designed for and limited to calls originating from a caller dialing an BM-issued or ported Direct Inward Dialing (DID), Toll Free or International Toll Free Service numbers. BM does not support the delivery of toll-free or collect calls or third party billing information via Customer’s Interconnection over DID numbers.
Technical Support and Customer Care BM will provide technical support and customer care to Customer; provided however, Customer shall be solely responsible for all technical support and customer care to its End Users, including but not limited to activities relating to the ordering, provisioning, billing and maintenance of services to its End Users. Additionally, BM shall not be responsible for sending notices relating to the Service to Customer’s End Users. Customer shall be responsible for any notices, bill inserts, or other information required by law to be provided to End User.
SECTION 3 – SERVICE GUARANTEE
30 Day Satisfaction Guarantee If for any reason Customer is not completely satisfied with Service within 30 days from the date payment is received for the initial Service Order, Customer may cancel Service and a credit or refund will be issued. Customer will be responsible for paying all charges that are incurred during the refund period. The credit or refund will be issued in the manner in which payment was made or via company check. The manner of refund will be at the sole discretion of BM.
SECTION 4 – SERVICE AND RESALE OF SERVICE
Resale of Services Customer hereby acknowledges and agrees that it is the Customer of record for all Services purchased from BM. In connection with its resale of the Services, Customer understands and agrees that it is solely responsible for all order provisioning, billing, collection, billing adjustments/credits, tax collection and payment, customer service, service installation, operation and termination, dispute resolution, other service-related requirements and creditworthiness of its End Users. BM shall have no liability to Customer’s End Users under this Agreement. Customer is responsible for payment for all charges for Service furnished to Customer and/or its End Users by BMpursuant to the payment terms set forth in this Agreement. This responsibility is not changed by virtue of any use, misuse, fraud or abuse by Customer, its employees, its End Users or other members of the public of the Services provided to Customer or Customer provided systems, equipment, facilities, or services interconnected to such Services, or the inability to collect payments or charges from Customer’s End Users. Further, BM will not issue credits for fraudulent calls passed to BM by Customer. Customer assumes the responsibility for enforcing all applicable regulations and the provisions of this Agreement with respect to its End Users, and any liability arising from violations thereof. In the event BM terminates the provisioning of any resold services to Customer for any reason, including without limitation disconnection of Customer for failure to make payment as required herein, Customer shall be solely responsible for providing any and all necessary notice to its End Users of the termination.
SECTION 5 – TERM, RENEWAL AND TERMINATION
Term and Renewal – The term of this Agreement shall commence on the date this Agreement is accepted by Customer, and shall terminate one (1) year thereafter. Thereafter, this Agreement shall be automatically renewed in successive one-year periods unless terminated by written notice by one of the Parties at least thirty (30) days prior to the end of the initial term or renewal period. Termination – If Customer wishes to terminate Service for any reason, or not to renew such Service, Customer shall provide BMwith written notice addressed to BMat such location or in such manner as BMhas defined within this document. Such notice must be provided in writing and provide a full thirty (30) days notice prior to the end of the current term of this Agreement. Termination of Service by any form of communications or means other than as provided in this document, Section 19, shall not be effective and Customer shall remain obligated to BMfor all Services rendered. For the avoidance of doubt, Customer may be liable for early termination charges upon termination of Service.
6a – BILLING AND PAYMENT
Customer shall pay the recurring and non-recurring rates and charges and the usage charges set forth herein and/or in the Service Orders beginning on the Service start date without deduction, setoff or delay for any reason. Customer agrees to pay for the Services, by credit card, paypal, checks or electronic funds transfer, by the 15th of each calendar month. Customers may also elect to enroll in BM’s Automatic Payment Program as a method of providing monthly invoice payments. Online orders are automatically enrolled in the Automatic Payment Program. Restrictive endorsements or statements on checks accepted by BM will not be binding upon BM. Monthly recurring charges are billed in advance while usage and related charges are billed in arrears. The Parties shall provide one another with reasonably requested information for bill verification.
Except for amounts in dispute, interest (late fee) not to exceed 3% monthly may be charged on any outstanding balance not paid by the bill due date. If the interest rate set out above exceeds the maximum rate allowable by law, then the interest chargeable shall be equal to the maximum rate allowed by law. Customer agrees to reimburse BM for any costs incurred as a result of any collection activity, including without limitation reasonable attorneys’ fees and court costs, unless otherwise prohibited by law. Customer authorizes BM to request information from a reporting agency to enable BM to assess Customer’s credit history. Customer agrees that such action is not the extension of “credit” to Customer and further agrees that BM, in its sole discretion, may alter any billing arrangements as a result of such report or upon determination of a change in Customer’s financial circumstances. Customer agrees that at any time during and upon two (2) business days notice, BM may require Customer to wire transfer a deposit or submit another form of security acceptable to BM if it reasonably deems itself insecure with respect to Customer’s ability to pay (e.g. if Customer has failed to pay any invoice when due, or if there is a material change in circumstances of Customer’s actual or anticipated usage hereunder or Customer’s financial condition). Failure by Customer to comply with such requirement by BM may result in Service suspension or termination.
If Customer disputes any invoice, Customer shall notify BM’s Billing Department in writing, providing the account number, any trouble ticket number and an explanation for the dispute and shall nevertheless pay the affected invoice by the payment due date, provided that Customer may withhold payment of the amount in good faith dispute. BM will investigate the dispute and in its discretion exercised in good faith, may require additional supporting documentation or reject Customer’s claim as inadequate. No charges may be disputed more than thirty (30) days after the date such charges are invoiced, and if not disputed within that time, all such charges shall be deemed valid and undisputed by Customer. Payment shall not prejudice Customer’s right to dispute charges, so long as they are disputed in good faith in the manner and within the timeframes specified in this section. The Parties will cooperate in good faith to resolve any such disputes within a thirty (30) day period after the dispute is submitted to BM. If the dispute is not resolved during this period, then either Party may seek resolution of the dispute in accordance with Section 17.
Billing disputes under this Agreement shall be in writing and delivered by overnight courier (e.g., Federal Express, DHL) or certified mail, return receipt requested to the following address or via electronic mail (to the e-mail address provided below) and such dispute shall be effective on the date of receipt by BM: Blue Mogul Enterprise, LLC Attention: Billing Department 700 Louisiana St, Ste 3950, Houston, TX 77002
If a disputed amount is determined by BM to be a legitimate charge, the Customer agrees make payment of the amount due within five (5) business days of such determination.
If Customer does not make payment of all invoiced charges in accordance with the provisions herein by the applicable due date, BM may, at its option and without notice, refuse to accept additional Service Orders; suspend any and all Service provided under this Agreement and/or any other service agreement until Customer has paid all past due; offset such unpaid balances from any amounts that BM owes to Customer under any other agreement between the Parties. Following suspension of Services for non-payment, BM is not required to reinstate Services to Customer until Customer has paid, in full, all charges then due, including any late fees, interest charges, collection costs and any cost of reinstating Services and Customer provides to BM satisfactory assurance as requested by BM (such as a deposit) of Customer’s ability to pay for Services for the remainder of the applicable Service term. If Customer fails to timely cure the non-payment within the timeframe specified by BM Customer will be deemed to have terminated the affected Services as of the effective date of Service suspension. Termination, hereunder, for non-payment shall be treated as early termination by Customer subject to early termination charges and BM may offset respective payments by first applying such amounts owed by BM to the full balance due from Customer and the remaining amounts owed by BM, if any, will be remitted in the normal course of business.
SECTION 6b – SUSPENSION OF SERVICES
All Services are offered on a commercially reasonable basis only and are not guaranteed. In addition, BM reserves the right to immediately suspend all or any part of the Services if: (i) Customer engages in activities that, in COMPANY’s sole discretion, may cause disruption or damage to COMPANY’s business, network, or facilities; (ii) COMPANY detects any suspected fraudulent use of the Services, and/or Artificially Inflated Traffic (defined below), whether directly or indirectly; (iii) Customer’s account is inactive (passes no billable calls) for ninety 90) consecutive days; (iv) COMPANY requests identifying or other documentation from Customer for legal, administrative or regulatory purposes and Customer fails to provide appropriate documentation (in COMPANY’s sole discretion) within a reasonable time; (v) Customer exceeds its credit limit.
SECTION 6b – TERMINATION
SECTION 6c – FRAUDULENT CALLS AND ARTIFICIALLY INFLATED TRAFFIC
Customer shall not dispute any charges or withhold payment on the basis that Fraudulent Calls or Artificially Inflated Traffic comprised a portion of the traffic volume. Customer shall be responsible for all charges associated with any Fraudulent Calls and Artificially Inflated Traffic. It is Customer’s sole responsibility to take immediate action to block any Fraudulent Calls and Artificially Inflated Traffic. For purposes of this Agreement, “Fraudulent Calls” shall include, but not be limited to, deliberate exploitation of systemic errors in BM’s routing system. For purposes of this Agreement, “Artificially Inflated Traffic” means any activity which: (i) has the effect, intended effect or likely effect of preventing BM’s billing system from capturing any necessary billing information (in relation to the conveyance of a call); (ii) causes incorrect billing by BM’s billing system, or of an associated party; (iii) any situation where any person or entity is misled into making, receiving or prolonging calls; or(iv) is determined by BM, in its sole and absolute discretion, to be bad faith usage of the Services. In the event Fraudulent Calls and/or Artificially Inflated Traffic causes BM to be charged more by its terminating partners than the rate(s) quoted by BM to Customer, then in addition to BM’s right to seek all remedies available to it at law or in equity, BM reserves the right to re-rate all such traffic at the higher termination rate for the destination(s) in question and Customer agrees to pay all such re-rated charges.
Section 6d – CONDUCT AND INFORMATION RESTRICTIONS
BM prohibits uses and activities by a Customer directly or through the resale of BM services that are illegal, infringe the rights of others, or interfere with or diminish the use and enjoyment of the Service by others. For example, these prohibited uses and activities include, but are not limited to, using the Service, Network, or BM’s equipment, either individually or in combination a Customer’s resale of BM Services to:
or accomplish any unlawful purpose. This includes, but is not
limited to, posting, storing, transmitting or disseminating
information, data or material which is libelous, obscene, unlawful,
threatening or defamatory, or which infringes the intellectual
property rights of any
person or entity, or which in any way constitutes or encourages conduct that would constitute a criminal offense, or otherwise violate any local, state, federal, or non-U.S. law, order, or regulation;
- post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be unlawful;
- upload, post, publish, transmit, reproduce, create derivative works of, or distribute in any way information, software or other material obtained through the Service or otherwise that is protected by copyright or other proprietary right, without obtaining any required permission of the owner;
- transmit unsolicited bulk or commercial messages commonly known as “spam;”
- send very large numbers of copies of the same or substantially similar messages, empty messages, or messages which contain no substantive content, or send very large messages or files that disrupts a server, account, blog, newsgroup, chat, or similar service;
- initiate, perpetuate, or in any way participate in any deceptive scam, commercially deceptive content presentation or any other illegal scheme;
in the collection of very large numbers of email addresses, screen
names, or other identifiers of others (without their prior
consent), a practice sometimes known as spidering or harvesting,
or participate in the use of software (including “spyware”)
designed to facilitate this
- collect responses from unsolicited bulk messages;
- falsify, alter, or remove calling headers;
- falsify references to BM or its network, by name or other identifier, in messages;
- impersonate any person or entity, engage in sender address falsification, forge anyone else’s digital or manual signature, or perform any other similar fraudulent activity including, but not limited to: attempting to acquire sensitive information such as usernames, passwords, and credit card details (and sometimes, indirectly, money) by masquerading as a trustworthy entity also referred to as “phishing”);
- commercially deceive
the rules, regulations, terms of service, or policies applicable to
any network, server,
computer database, service, application, system, or web site that you access or use;
SECTION 7 – TAXES
The rates, pricing and charges for Services set forth herein or in any Service Order do not include applicable taxes and surcharges. Customer shall be responsible for and shall pay any taxes, arising in any jurisdiction, including without limitation, sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, consumption, or other taxes, fees, duties, charges or surcharges; however designated, imposed on or based on the provision, sale or use of the Services, including taxes or surcharges imposed directly on BM. If Customer believes it or the Services is exempt from any tax, Customer will provide BM with a properly executed exemption certificate evidencing such claimed exemption. Customer agrees to the obligation to pay taxes and surcharges under this section. This section shall survive the expiration or early termination of the Agreement.
SECTION 8 – SERVICE CHANGES AND EARLY TERMINATION
Service Additions – Customer may add Services at anytime during the term of this Agreement. All Service additions, unless otherwise specified under an attached amendment or separately accepted Agreement, will be governed by the term of this Agreement. When Service is initiated on a day other than the first day of the month, any recurring charges for that month shall be prorated accordingly. Partial Service Cancellation – Customer may cancel a portion of their Services at anytime during the term of this Agreement provided that the Customer adheres to the following stipulation(s): All partial Service cancellations, unless otherwise specified under an attached amendment, requires thirty days (30) written notice from the customer of record. The partial Service cancellation request will be effective at the end of the billing cycle following the date the request is received by BM. Customer agrees to pay all fees applicable to a partial Service cancellation. Early Termination – Customer may terminate this Agreement prior to the end of the term provided that the Customer adheres to BM’s Account Cancellation Policy as stated below: (i) BMrequires thirty (30) days notice in order to cancel an account. The 30 day notice period will begin at the time of receipt of this notice by BM, unless otherwise specified in this policy. If Customer account is “past due” at time of the cancellation request, Customer will be immediately responsible for the amount due in order to begin the process of account cancellation and start the 30 day notice period. (ii) BM ONLY accepts cancellation notices via the Account Cancellation Form. Customer cannot cancel account via email or phone, no exceptions. All cancellation notices will be mailed via traceable means by courier (e.g., Federal Express, DHL), certified mail (return receipt requested) or faxed per the address and fax number provided on the Account Cancellation Form. (iii) Accounts less than 30 days old, will receive a full refund minus any usage charges and/or any and all fees, charges, taxes or expenses incurred on the Customer’s behalf. (iv) All accounts must complete one billing cycle, after the cancellation request is made, before the account can be closed, except where the account is governed by “section iii” of this policy. The Customer will be responsible for and agrees to pay the service and usage charges billed during the final billing cycle. (v) Customers wishing to cancel their account will be contacted by an BM representative to verify the cancellation. BM will use the current contact information attached to the account being cancelled to conduct the verification. Customer understands that this procedure is to prevent fraudulent account closures. (vi) Account will be officially closed when last payment is received. BM Service Changes BM reserves the right to adjust charges for and/or delete Service offerings at any time.
SECTION 9 – DEFAULT
A Party shall be deemed in “Default” of this Agreement upon the occurrence of any one or more of the following events: a Party violates any applicable laws, statutes, ordinances, codes or other legal requirements with respect to the Services and such violation(s) are not remedied within thirty (30) days after written notice thereof; or a Party fails to perform any of its material obligations under this Agreement and such nonperformance is not remedied within thirty (30) days after notice thereof, except for payment defaults, for which no cure periods in addition to those described in Section 6 herein shall be available.
In addition to all remedies available at law or in equity, the BM may terminate this Agreement, including, for the avoidance of doubt, related Service Orders, in whole or in part, upon the occurrence of a Default.
SECTION 10 – CONFIDENTIAL INFORMATION
Each Party shall preserve the other Party’s confidential information provided to it hereunder with the same degree of care in protecting its own confidential or proprietary information, but in no event less than a reasonable standard of care shall be used.
SECTION 11 – Licenses and Legal Compliance
Each Party represents and warrants to the other Party that it is an entity, duly organized, validly existing and in good standing under the laws of the place of its origin, with all requisite power and authority to enter into and perform its obligations under this Agreement in accordance with its terms.
BM represents and warrants to Customer that all On-Net Service rendered by it hereunder shall be designed, produced, installed, furnished and in all respects provided and maintained in conformance and compliance with applicable federal, state and local laws, administrative and regulatory requirements and any other authorities having jurisdiction over the subject matter of this Agreement.
Customer represents and warrants that all Services rendered by it to its End Users shall be designed, produced, installed, furnished and in all respects provided and maintained in conformance and compliance with applicable federal, state and local laws, administrative and regulatory requirements and any other authorities having jurisdiction over the subject matter of the Customer-provided Services, and it has all licenses, approvals, registrations and certifications (collectively, “Approvals”) which may be required by the applicable regulatory authorities for its operation and the provision of any services to its End Users and it shall be solely responsible for applying for, obtaining and maintaining all such Approvals.
The warranties and remedies set forth in this Agreement constitute the only warranties and exclusive remedies with respect to this Agreement. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, NON-INTERFERENCE AND NON-INFRINGEMENT.
SECTION 12a – EMERGENCY SERVICES
understands and acknowledge that BM’s 911 emergency Service has
certain limitations and works differently when compared to
traditional 911 emergency service. BM’s 911 emergency Service
limitations and the way BM deploys its 911 emergency Service may
make BM unsuitable to some users. You should carefully
evaluate BM’s 911 emergency Service limitations when deciding to
activate BM’s Service. You agree and acknowledge that it is
your responsibility to select a 911 emergency service provider best
suited to meet your emergency calling needs, and to make the
necessary arrangements for accessing emergency calling services,
such as maintaining a traditional phone line or cellular (mobile)
phone as a backup means for your emergency calls. By entering
into this Agreement, You will be presumed to have assumed the risk
of losing 911 emergency dialing capabilities and agree to provide
your telephone number and other identifying information to 911
emergency authorities as you deem necessary (in your sole opinion
and discretion) in case of an emergency. BM assumes no
liability for the failure of E911 to perform and assumes no
liability if you move and do not update your E911 address
SECTION 12b – Limitations of Emergency Calling – 911 Dialing
BM depends upon certain third parties to provide 911 emergency Service and is thus subject to their network implementation and deployment schedules. Consequently, E911 emergency Service may be limited or unavailable in certain geographic areas until these third parties have completed this implementation and deployment. When you sign-up for the Service, we will advise you of the kind of 911 emergency Service, E911 or basic 911, that will be available with your Service. In addition, you may view your account information on our website, which specifies the kind of 911 emergency Service you have. When there is a problem validating your information and/or address or you are identified with an international location, your 911 emergency call will be sent to the national emergency call center. In addition, emergency personnel will not receive your telephone number or know your physical location when your 911 emergency call is routed to the national emergency call center. Routing to a national emergency call center could substantially delay the response of emergency service providers or could result in no emergency service being provided to you at all. Circumstances in which BM’s 911 and E911 Emergency Service may be Limited or unavailable include (but not limited to) the following:
- If your Digital Subscriber Line (“DSL”), cable modem, or other broadband access connections are disconnected, suspended, or interrupted for any reason, including electric power failures;
- If you relocate or move the BMAdapter to a location other than the one that you registered with us or if you otherwise disconnect or modify the BMAdapter;
- If you change your telephone number or if you add new telephone numbers to your account, and do not successfully register your location of use for each changed or newly added telephone number;
- If there are delays or disruptions of Service in the network or Services of BM’s E911 underlying service provider;
- If there is network congestion and/or a reduction in network speed; or
- If Service is interrupted or terminated for any reason, including the suspension or termination of your account with us or with your broadband access supplier.
While BM will make commercially reasonable efforts to minimize the disruptive effects of BMs Service interruptions, degradations, or outages, it makes no guarantees or assurances that these will not occur. Such commercially reasonable efforts are BM’s sole obligation regarding such interruptions. Such outages or other Service disruptions may include loss of 911 emergency Service dialing capabilities for extended periods of time.Furthermore, home alarm systems, fax machines and other devices that attach to your home computers, local telephone service, cable system or other devices may not work with the Service. You are solely responsible for testing the operation of your home alarm systems, fax machines or other devices that you attach to the Service.
13 – INDEMNIFICATION
Customer and/or End User shall indemnify, defend and hold harmless BM and all of their employees, directors, officers, and agents from and against all claims, demands, actions, causes of actions, damages, liabilities, losses, and expenses (including reasonable attorneys’ fees) incurred as a result of third party claims:
(i) for libel, slander, infringement of copyright or unauthorized use of trademark, trade name, service mark or any other intellectual property infringement arising out of or related to use of the Service;
(ii) for patent infringement arising from the combining or connecting of Customer or third party services, equipment, and/or facilities to use BM’s Network or Service;
(iii) for damage to property and/or personal injury (including death) arising out of the gross negligence or willful act or omission of Customer and/or End User;
(iv) arising out of or in connection with Customer’s resale or sharing of the Services; and
(v) related to any Customer representations regarding Customer’s traffic and Customer’s use of Services.
(vi) any fraudulent use of the Services, including but not limited to Fraudulent Calls and Artificially Inflated Traffic;
(vii) any other act or omission by the Customer, including without limitation breach of any material obligation herein.
Customer will not settle any claims, demands, suits, proceedings or actions without BM’s prior written consent, which consent shall not be unreasonably withheld or delayed.
BM shall indemnify, defend and hold harmless the Customer and their employees, directors, officers and agents from and against all claims, demands, actions, causes of actions, damages, liabilities, losses and expenses (including reasonable attorney’s fees) incurred as a result of third party claims:
(i) for patent or copyright infringement relating to BM’s equipment or BM’s software used by BM to provide the Services hereunder; and
(ii) for damages to property and/or personal injury (including death) arising out of the gross negligence, willful act or omission of BM.
If, as the result of a claim or threatened claim related to an infringement of a third party’s intellectual property rights, (1) the Services or any essential component thereof are held by a court of competent jurisdiction, or in BM’s reasonable judgment may be held, to infringe, or (2) either Party receives a valid court order enjoining that Party from using the Services or any essential component thereof or, in BM’s reasonable judgment if such order may be received, BM shall in its reasonable judgment, and at its expense, (a) replace or modify the affected Service or essential component to be non-infringing; (b) obtain for Customer a license to continue using the affected Service or essential component; or if BM cannot reasonably obtain the remedies in (a) or (b), terminate the affected Service without penalty to Customer. This Section states BM’s entire responsibility and liability and Customer’s sole and exclusive remedy for any claim of infringement. Notwithstanding the foregoing, BM shall have no liability for any claim of infringement based on (a) the use of the Services in a manner not contemplated or otherwise not in accordance with this Agreement and documentation related to the Services; (b) any combination of the Service or essential component thereof with other elements or the modification of a Service by anyone other than BM where, but for such combination or modification, no claim of infringement would exist or the use of the Services. Any and all claims for indemnification shall be conditioned upon (i) prompt written notification by the indemnified Party to the indemnifying Party; (ii) assumption of sole control of the defense of such claim and all related settlement negotiations by the indemnifying Party; and (iii) provision by the indemnified Party of the prompt assistance, cooperation, information and authority necessary for the indemnifying Party to perform its obligations under this Section.
SECTION 14 – LIMITATION OF LIABILITY
Neither Party shall be liable to the other Party for any indirect, consequential, special, incidental, reliance or punitive damages of any kind or nature whatsoever including, without limitation, any lost profits, lost revenues, lost savings or any other business loss including goodwill, loss of use of property, loss of data, cost of substitute performance equipment or services, downtime costs and claims of customer for damages or harm to business, regardless of the foreseeability thereof and regardless of whether damages are caused by the willful misconduct, negligent act or omission or wrongful act arising from or related to this Agreement. For purposes of this Agreement, a Party’s out-of-pocket costs for damages of the kinds specified in the preceding sentence which are recovered from such Party by a third party shall be deemed to be indirect damages to such Party and each Party hereby releases the other Party, and their respective officers, directors, managers, employees, and agents, from damages from such claim(s), except to the extent such damages are part of claims for which indemnification is due under Sections 13 herein. Customer’s sole remedy for the failure of non-performance of BM and/or the Service shall be to receive credits as set forth in this Agreement. THE ENTIRE LIABILITY OF BMAND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF DIRECT DAMAGES OR THE TOTAL AMOUNT PAID BY CUSTOMER TO BMDURING THE PREVIOUS THREE (3) MONTHS FOR THE SERVICE(S). The foregoing limitations apply to all causes of action and claims of any kind arising out of or related to this Agreement including any amendments and Service Order(s), including, without limitation, breach of contract, breach of warranty, strict liability, negligence, misrepresentation or any other tort. Customer acknowledges and accepts the reasonableness of the disclaimers and limitations of liability set forth herein.
SECTION 15 – REGULATIONS
The Services governed by this Agreement are subject to the imposition of new regulation, modification of existing regulation, 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 court of competent jurisdiction, including, without limitation, the imposition of any charges, surcharges, and/or taxes in reliance or as a result of the same (collectively, “Regulatory Activity”). BM reserves the right, at any time, (i) to pass through to Customer all, or a portion of, any charges, surcharges or taxes directly or indirectly related to such Regulatory Activity; and/or (ii) modify the rates and/or other terms and conditions of this Agreement to reflect the impact of such Regulatory Activity, including, without limitation, the impact of any actions by third parties in connection with such Regulatory Activity.
Customer also represents and warrants that neither it nor any of its End Users or agents will remove or in any way alter Automatic Number Identification (“ANI”) or Calling Party Number (“CPN”) information associated with any traffic delivered pursuant to this Agreement.
Customer shall promptly pay to BM all access charges, reciprocal compensation, and/or any other charges, surcharges and/or taxes billed to BM by a third party, or remitted by BM to a third party, that are associated with any of Customer’s traffic delivered or facilities utilized pursuant to this Agreement, including but not limited to any retroactive charges, (collectively, “Additional Charges”) and that are not already reflected in the rates charged by BM for the Services rendered pursuant to this Agreement. Although BM shall not have any obligation to challenge any Additional Charges levied by a third party, if BM successfully challenges imposition of any Additional Charges by a third party, it will refund to Customer any Additional Charges previously paid by Customer to BM that were subject to such successful challenge. Within one (1) billing cycles of any such rate increase reflecting Additional Charges, Customer, upon giving written notice to BM, may elect to transition any Services affected by such rate increase to another carrier over a period of time not to exceed thirty (30) days. Notwithstanding any other provision of this Agreement, if, within the designated one (1) billing cycle period, Customer does not provide written notice to BM of its election to transition the affected Services to another carrier, Customer shall be deemed to have waived its right to such election. Even if Customer elects to transition the affected Services to another carrier, Customer shall still be responsible for paying any and all Additional Charges billed to or remitted by BM up to and including the final transition date. The parties agree to cooperate on the scheduling of any such transition.
Customer agrees that, if BM is subjected to a third party audit relating to Customer’s traffic which is the subject of this Agreement, Customer will cooperate and assist in any such audit. Customer further agrees that it will protect, defend, indemnify and hold harmless BM, officers, directors and employees from any and all costs resulting from or related to such third party action.
ARTICLE 16 – FORCE MAJEURE
In no event shall a Party have any claim or right against the other Party for any failure of performance due to causes beyond its control, including but not limited to: acts of God, fire, explosion, vandalism, cable or fiber cut, adverse weather conditions, flood or other similar occurrences; any law, order regulation, direction, action or request of the government, including federal, state and local governments having or claiming jurisdiction over BMor of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government or of any civil or military authority; national emergencies; unavailability of materials or rights-of-way; insurrections; riots, wars; terrorism; strikes, lock-outs, work stoppages, or other labor difficulties, supplier failures, shortages, breaches or delays; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected Party.
SECTION 17 – DISPUTE RESOLUTION
Parties agree to use the dispute resolution procedures set forth in this Section with respect to any controversy or claim arising out of or relating to this Agreement or its breach.
Upon thirty (30) days written notice, either Party may submit disputes to binding arbitration by a single arbitrator with a professional arbitration service selected by the Parties. If the Parties do not otherwise agree on an arbitration service, such services shall be provided pursuant to the American Arbitration Association (“AAA”) Commercial Arbitration Rules and Mediation Procedures. The costs of arbitration, including the fees and expenses of the arbitrator, shall be paid equally by the Parties. Each Party shall bear the cost of preparing and presenting its case. The Parties agree that Harris, Texas shall be the location for the arbitration hearing.
The Parties agree that this Section 17 and the arbitrator’s authority to grant relief shall be subject to the Federal Arbitration Act, 9 U.S.C. 1-16, et seq. (“FAA”), the provisions of this Agreement, and the AAA Code of Ethics for Arbitrators in Commercial Disputes. The Parties agree that the arbitrator shall have no power or authority to make any award that provides for punitive or exemplary damages or damages otherwise limited or excluded in this Agreement. The arbitrator’s decision shall be final and binding. The award may be confirmed and enforced in any court of competent jurisdiction. All post-award proceedings shall be governed by the FAA.
SECTION 18 – ASSIGNABILITY
Customer may not assign this Agreement without the prior written consent of BM. Any request by Customer for such consent from BM shall be directed to BM’s address for the delivery of notices. Any such assignment without BM’s prior written consent shall be void.
SECTION 19 – NOTICES
Notices under this Agreement shall be in writing and delivered via traceable means by courier (e.g., Federal Express, DHL), certified mail (return receipt requested) to the following address and such notice shall be effective on the date of receipt by BM: Blue Mogul Enterprise, LLC 700 Louisiana, Suite3950 Houston, Texas 77002
SECTION 20 – MISCELLANEOUS
In the event of any express inconsistency, and only to the extent of such inconsistency, between the main body of this Agreement and any Service Orders made a part or in accordance with this Agreement, precedence shall be given to:
(1) The main body of this Agreement
(2) Signed Amendments
(3) Any Service Orders
BM’s equipment shall remain the sole and exclusive property of BM or its assignee, and nothing contained herein shall give or convey to Customer any right, title or interest whatsoever in such equipment, which shall at all times be and remain personal property notwithstanding that it may be or become attached to or embedded in realty. BM may substitute, change or rearrange equipment used in providing Service. Customer agrees immediately upon termination of the Service for any reason, and in any case not later than fifteen (15) days following termination of the Service for any reason, to return to BM all BM-provided equipment. Said equipment shall be in the same condition as when delivered to Customer, normal wear and tear excepted. In the event Customer fails to return such equipment to BM, Customer agrees it shall reimburse BM, upon demand, for the replacement cost of such equipment as well as any costs incurred by the BM due to Customer’s failure to comply with this provision.
This Agreement does not render either Party the agent or legal representative of the other Party and does not create a partnership or joint venture between Customer and BM. Neither Party shall have any authority to agree for or bind the other Party in any manner whatsoever. This Agreement confers no rights of any kind upon any third party, including without limitation Customer’s End Users.
No waiver of any of the provisions of this Agreement shall be binding unless it is in writing and signed by both Parties. The failure of either Party to insist on the strict enforcement of any provision of this Agreement shall not constitute a waiver of any provision and all terms shall remain in full force and effect.
No subsequent agreement among the Parties concerning the Service shall be effective or binding unless it is made in writing and executed by authorized representatives of the Parties. Neither electronic mail nor instant messaging (IM) shall be considered a “writing” sufficient to change, modify, extend or otherwise affect the terms of the Agreement.
This Agreement sets forth the entire understanding of the Parties and supersedes any and all prior or contemporaneous agreements, arrangements or understandings relating to the subject matter hereof, written, oral or otherwise.
If any part of any provision of this Agreement or any other agreement, document or writing given pursuant to or in connection with this Agreement shall be invalid or unenforceable under applicable law, said part shall be ineffective to the extent of such invalidity only, without in any way affecting the remaining parts of said provision or the remaining provisions of this Agreement.
To the extent permitted by local or state law or regulation, this Agreement for Service is made pursuant to and shall be construed and enforced in accordance with the laws of the State of Texas without regard to its choice of law rules. Any action arising out of or related to this Agreement shall be brought in the state or Federal courts located in Harris, Texas, and Customer consents to the exclusive jurisdiction and venue of such courts.
This Agreement is non-exclusive. Nothing in this Agreement shall prevent Customer or BM from entering into similar arrangements with, or otherwise providing Services to, any other person or entity. Further, Customer understands and agrees that (i) as part of BM’s normal business, BM will engage in extensive marketing efforts to sell its services; (ii) such efforts will result in active competition with Customer; and (iii) such competition is fair and proper and Customer shall not complain of business lost to BM as a result.
Neither Party shall issue a news release, public announcement, advertisement or other form of publicity concerning the existence of this Agreement or the supplies or Services to be provided hereunder without obtaining the prior written approval of the other Party. Any request by Customer for such consent from BM shall be directed to BM’s address for the delivery of notices. Customer shall not attempt to sell Service to its End Users or prospective End Users using BM’s name or indicate to End Users or prospective End Users that it has any relationship to BMother than an agreement to purchase BMServices.
The terms and provisions contained in this Agreement that by their sense and context are intended to survive the performance thereof by the Parties shall survive the completion of performance and termination of this Agreement, including, without limitation, the making of any and all payments hereunder.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date stated below. Facsimile signatures shall be sufficient to bind the parties to this agreement.