Legal Information

General Terms and Conditions

GP Technology Solutions LLC (d/b/a D-Best Technologies)

GENERAL PROVISIONS

1. Definitions and Interpretation

In these Conditions, the Rate Schedule and every Quote, Order, Plan contract, or other arrangement in connection with the supply of Goods or Services by D-Best Technologies the following words have the following meanings:

Interpretation

In these Conditions, unless the contrary intention appears:

• Words denoting the singular number only shall include the plural number and vice versa
• Reference to any gender shall include every other gender
• Reference to any Law, Statute or Regulation shall include any amendment currently in force at the relevant time and any Law, Statute or Regulation enacted or passed in substitution therefore
• Headings and words put in bold are for convenience of reference only and do not affect the interpretation or construction of these Conditions
• All references to dollars ($) are to USD
• A reference to time is to CST (Central Time UTC -6:00)
• A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa
• A reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to these Conditions
• A recital, schedule, annexure or description of the parties forms part of these Conditions
• A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time
• Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning
• A reference to “includes” means includes without limitation
• A reference to “will” imports a condition not a warranty
• A reference to bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration, being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction

2. Application of These Conditions

2.1 Unless otherwise agreed by Us in writing, these Conditions are deemed incorporated in and applicable to every Quote, Order, Plan, contract or other arrangement in connection with the supply of Goods and/or Services by Us to You.

2.2 Signed agreements: Where You have signed a Managed IT Agreement or a Voice Services Agreement with Us, these Conditions are incorporated into that agreement only to the extent they do not conflict with it, and the signed agreement prevails in the event of any inconsistency.

2.3 Order of precedence: If there is any inconsistency between the documents governing Our supply of Goods or Services to You, the following order controls: (a) a signed Managed IT Agreement or Voice Services Agreement, including its schedules, service orders and exhibits; (b) the Voice Services Terms and Conditions, as to Voice Services; (c) these Conditions; (d) the Rate Schedule.

2.4 Severability: The invalidity or unenforceability of any one or more provisions of these Conditions will not invalidate or render unenforceable the remaining provisions.

3. Termination

3.1 You may terminate this Agreement on thirty (30) days’ written notice if We:

• 3.1.1 fail to materially fulfill Our obligations under this Agreement and do not remedy that failure within thirty (30) days of written notice;

• 3.1.2 breach any material term and fail to remedy that breach within thirty (30) days of written notice; or

• 3.1.3 terminate or suspend Our business operations, unless succeeded by a permitted assignee under this Agreement.

Termination under clause 3.1.3 is effective immediately on notice. Termination under clause 3.1 does not give rise to any early termination fee.

4. Representations

4.1 You acknowledge that no employee or agent of Ours has any right to make any representation, warranty or promise in relation to the supply of Goods or Services other than subject to and as may be contained in the Conditions.

5. Notices

5.1 Any notices given under the Conditions shall be in writing and sent by e-mail to the last notified e-mail address of Yours.

6. Governing Law

6.1 These Conditions are governed by and construed in accordance with the laws of the State of Arkansas, without regard to its conflict of laws principles.

6.2 Subject to any dispute resolution provision in a signed agreement or in the Voice Services Terms and Conditions, the state and federal courts located in Sebastian County, Arkansas have exclusive jurisdiction over any proceeding arising out of or relating to these Conditions, and each party consents to that jurisdiction and venue and waives any objection based on inconvenient forum.

7. Assignment

7.1 You may not assign Your rights and obligations under this Agreement without the prior written consent of Us.

8. Variation of These Terms and Conditions

8.1 Changes: We may vary these Conditions from time to time. We will give You at least thirty (30) days’ notice of any variation by sending notice to Your Primary IT Contact’s email address and publishing the varied Conditions on Our website.

8.2 Materially adverse changes: If a variation materially and adversely affects You, You may terminate the affected Goods or Services without liability for any early termination fee by giving Us written notice within thirty (30) days after Our notice. Your continued use of the Goods or Services after the effective date of a variation, without such notice, constitutes acceptance of the variation.

8.3 Pass-through and regulatory changes: Changes to taxes, government charges, regulatory fees and third-party pass-through costs imposed on Us take effect when imposed and are not subject to clause 8.1.

8.4 Rates during a Commitment Term: Nothing in this clause permits Us to vary rates fixed for a commitment term under a signed agreement except as that agreement permits.

GOODS AND SERVICES

9. Quotes

9.1 Term and effect: Quotes will only be valid for 7 days unless otherwise specified in the Quote. A Quote is merely an invitation to You to place an Order with Us and the acceptance of a Quote by You will not create a binding contract between You and Us.

9.2 Quote is valid for 7 days only. Expiry dates on quotes are set to be able to inform Us when the quote is still active or to be discarded. Once discarded the quote will need to be requested again.

9.3 Once a quote has been confirmed by Us, then the prices in the quote will be confirmed as the final agreed price. A quote is confirmed as ‘final’ as soon as both parties agree with the final price after any last changes requested by You.

9.4 The price in the final quote may vary from the original request if there are any product changes. We reserve the right to alter products in the quote, as long as the modification is subject to Your final approval.

9.5 Quotes and estimates shall be deemed to correctly interpret the original specifications and are based on the cost at the time the quote or estimate is given. If You later require any changes to the quotes, and We agree to the changes, these changes will be charged at Our prevailing rate.

9.6 Once the Quote has been confirmed and converted to an Order, the Order will be subjected to our normal Terms and Condition of Sale.

9.7 The general minimum turnaround time for Quote request to be actioned is usually 24 hours. In the event that a quote is required urgently please let us know so that we can respond to it accordingly.

9.8 When a special price or discount offer has been applied to this Quote, no other special promotion, discount or bonus offer will be applicable.

9.9 In the event that products in the Quote are subjected to any price and supply fluctuations that is outside of Our control We reserve the right to update the price and product in the Quote accordingly. If a product has undergone a price drop or a price increase, the Quote will then be adjusted accordingly. If there is a product that is no longer available, the product will then be replaced or substituted based on Your request and is subject to Your final approval.

9.10 Price on non-stocked products are subjected to Price and stock fluctuations and can only be confirmed once the Quote is turned into an Order. While We endeavour to honour every price quoted, if there is a price increase that is beyond our control, We reserve the right to increase the price as necessary.

9.11 Once a Quote has already passed the expired date, We may cancel the quote or estimate without having to notify or receive an approval from You.

9.12 ETA information is based on an estimate given by our vendors and cannot be held as the actual promised date.

9.13 Freight charges will be added to the Order unless otherwise stated. Any included delivery charges are estimates only.

9.14 We do not keep inventory on every item and as such only order items once we receive a completed order from a client. If You would like to return an item or cancel an order, a restocking fee may apply. We will need to get approval from the distributor that the stock is returnable before being able to issue a refund as not all products can be returned.

9.15 Prices are based upon total Quote Purchase.

9.16 Unless Specified, all items on quote are covered by manufacturer’s warranty covering parts and labor for hardware only on a return to depot basis.

9.17 Varying or withdrawing Quotes: We may vary or withdraw a Quote at any time in Our absolute discretion and without prior notice to You. We may do so for any reason We consider fit, including, e.g. where the Goods or Services become unavailable or the cost price of Goods or Services increases after the date of the Quote.

10. Orders

10.1 Order forms: You may place an Order for Goods and/or Services with Us via email or by approving a Quote. Normally, We will require that You provide either a signed Quote or You approve the quote electronically via an email with the date, Quote number and Your details, including Your full legal name (and the full name or description of any person on whose behalf the order is placed).

10.2 Approval of Orders: You will need to sign the Quote or have it duly executed on Your behalf, unless the Order is approved by email, in which case the Quote will be treated or deemed as if signed by or on behalf of You by the person whose name appears as the sender of the email.

10.3 Reliance on appearance of validity: Absent actual knowledge to the contrary, We may rely upon the apparent validity of an Order. If any Order is signed or sent by email or approved through the web based ordering system by a named person, that person warrants that the Order is, and it is acknowledged the Order is deemed in favour of Us to be:

• 10.3.1 signed by, and duly authorized by, both the person who signed the Order and the person who sent the email; and
• 10.3.2 duly authorized by the person on whose behalf the Order is placed or apparently placed.

10.4 Acceptance and Orders: An Order has no effect unless or until it is accepted by You in writing and, if you are not approved for credit terms, until We have received from You payment in clear funds for the Order.

10.5 No obligation to deliver: We are not obligated to deliver any Order until we have received payment in clear funds from You for the Order or where We are unwilling or unable to complete the Order for any reason provided it refunds any payment made by You in respect of the Order.

10.6 Credit checks: For the purposes of ascertaining the credit standing or history of a prospective customer to whom We are considering extending credit or payment terms, You hereby consents to Us undertaking a credit reference check in respect to You.

10.7 Cancellation of Orders: You will not cancel an Order unless We agree to do so in writing in Our absolute discretion. You acknowledge that, amongst other things, We cannot cancel an Order once the manufacturer or supplier has despatched the relevant Goods and that such despatch often occurs the same day as the Order is placed by Us.

10.8 Processes and Procedures: We have processes and procedures that We follow in the course of the provision of Our Services and the supply of Goods. You agree to co-operate with Us and to comply with such processes and procedures as advised to You from time to time.

11. Services and Plans

11.1 Service and Plan Variations: Currently, We offer the Services and Plans referred to in the Rates Schedule and any Plan Schedule. We may withdraw the provision of, or vary the scope or terms of, or add to or change, the Services without notice to You, from time to time in Our absolute discretion.

11.2 Copies on Request: We will provide You with a copy of the current Rates Schedule upon request. Plan Schedules are tailored for particular Plans and are available to Clients participating in the Plan.

12. Pricing and Rates

12.1 Rates exclude Tax: All rates and amounts charged or quoted for Goods and/or Services by Us are exclusive of Tax and any other applicable taxes or government charges (unless otherwise stated in writing by Us).

12.2 Rates Schedule: You must pay for Goods and Services at the Rates set out in any applicable Plan and the Rate Schedule as applicable from time to time during the provision of the Goods and/or Services.

12.3 Vary Rates: We reserve the right to vary any Rate and/or the Rate Schedule from time to time in Our discretion. Rates for Services under a signed Managed IT Agreement may not be varied during the Commitment Term except as expressly permitted by that Agreement’s Pricing Adjustments section.

Notwithstanding the foregoing, third-party subscription costs (including Microsoft 365 licensing) that are passed through at cost are subject to change if the underlying vendor modifies its published pricing. Provider will give Client thirty (30) days’ written notice of any such pass-through adjustment.

12.4 Call-out fees: You acknowledge that call-out fees may be charged in addition to the Rates at Our absolute discretion and that the amount of the call-out fee will depend upon where the Services are provided.

12.5 Return/Cancellation Fee: Where We arrange a return or refund on behalf of You, or where an Order is cancelled by You after acceptance by Us, We may charge You a Return/Cancellation fee to cover the administration costs to Us in processing the return or refund, or in processing the Order, the cancellation and any refund. We may deduct the Return/Cancellation fee from out of any moneys otherwise due to be refunded to You by Us.

12.6 Appointment Cancellation Fee: If You cancel or reschedule a scheduled Service appointment within 24 hours of the agreed-upon time, We may charge You a Cancellation Fee to cover the costs associated with scheduling, preparation, and resource allocation. This fee will be determined at Our discretion based on the nature of the scheduled Service and any incurred costs. The Cancellation Fee will be added to Your next invoice or deducted from any pre-paid amounts, if applicable.

12.7 Expenses: You must pay any out of pocket expenses incurred by Us in providing the Services to You in addition to the Rates, charges and call-out fees, upon written demand. Where appropriate, We will obtain prior written authorization from You before such expenses are incurred.

12.8 Separate charges for Goods and Services: We may in Our absolute discretion charge for Goods separately from Services or may charge for Goods and Services together.

12.9 Calculation of increments: Where a charge is calculated based on increments of time, e.g. 1 hour or 30 minutes, We will charge the applicable rate for the whole increment of time even if work is done during part of, but not for the whole of, that increment of time.

12.10 Change in underlying costs: Without prejudice to any other rights of Ours under these Conditions, where there is any increase in the underlying costs incurred by Us in connection with the supply of Goods or Services to You, We may, in our absolute discretion, vary any of Our Rates.

12.11 Annual CPI Adjustment: Starting one (1) year after the Effective Date of this Agreement, and at each subsequent anniversary, pricing of this Agreement will automatically adjust according to the most recent December publicly available Consumer Price Index (CPI) figures provided by the Bureau of Labor Statistics (BLS).

Example: If your Monthly Agreement rate is $1,000 and the latest CPI figure is 2%, your new monthly rate will adjust to $1,020. Conversely, if the CPI figure is -2%, the monthly rate will adjust to $980.

13. Contracting

13.1 We may subcontract any or all of the Services to be performed, but shall retain prime responsibility for the Services under these terms.

14. Delivery, Title and Risk

14.1 Delivery liability: We will use all reasonable endeavours to despatch Goods by the due date, but do not accept any liability for non-delivery or failure to deliver on time where this is caused by circumstances beyond the reasonable control of Ours, including, for example, due to failures in supply to Us or delays caused by third parties, such as delivery companies or manufacturers.

14.2 Availability to accept delivery: You must be available to accept the Goods at Your nominated delivery address during Business Hours unless otherwise arranged.

14.3 Passing of Risk: Delivery is deemed to take place when the Goods are delivered to Your nominated address, whereupon risks of loss, breakage and all damage and all other risks pass to You. Nothing in this clause 14.3 will affect title to the Goods.

14.4 Obligation to insure: You will ensure that Goods are adequately insured from the time of delivery under clause 14.3.

14.5 Retention of Title: Until We receive full payment in cleared funds for any money due to Us by You on any account or for any reason:

• 14.5.1 title to, and property in, Goods supplied to You remain vested in Us and does not pass to You;
• 14.5.2 You must hold those Goods as fiduciary bailee and agent for Us and must not sell them;
• 14.5.3 You must keep those Goods separate from other goods and maintain the Goods and their labelling and packaging intact;
• 14.5.4 Where You sell the goods in breach of these Conditions, You are required to hold the proceeds of any sale of those Goods on trust for Us in a separate account;
• 14.5.5 We may, on reasonable notice and during normal business hours, enter any premises where those Goods may be located and take possession of them, provided We do so without breach of the peace, and You will provide reasonable access for that purpose. Nothing in this clause authorizes entry by force or entry to any residence.
• 15.5.6 You irrevocably appoint Us as Your attorney to do anything We consider necessary in order to enter such premises and repossess the Goods.

15. Returns and Claims for Goods and Services

15.1 General Returns Policy: You acknowledge that We supply Goods subject to all applicable conditions, including returns and claims policies, of any relevant manufacturer or supplier.

15.2 Customised Goods not returnable: Where Goods have some element of customisation for You, are supplied pursuant to an Order for Goods that is special or unusual, the Goods are obtained from overseas, or the Goods are otherwise not readily returnable, You may not return the Goods to Us or cancel the related services.

15.3 Duty to inspect: You will inspect all Goods immediately upon their delivery. Within 7 days of such delivery You may give written notice to Us of any matter or thing by reason of which You might wish to return the Goods, ask for a refund, or make a claim. If no such notice is given on time, You will accept the Goods without any such return, refund or claim.

15.4 Return Condition: Where You are entitled to return Goods under these Conditions, You must return the Goods in their original condition and unopened.

15.5 Return costs: You will pay all costs and expenses incurred by Us in arranging the return of the Goods to a manufacturer or supplier unless that manufacturer or supplier pays such costs.

15.6 Consequences of use, installation, customisation or sale: You will indemnify and hold Us harmless in respect of all allegations and claims in respect of Goods once such Goods have been used, installed, customised or re-sold by You.

16. Computer Utility, Functionality and Fitness for Purpose

16.1 Service limitations given the science of computing: You acknowledge that a reasonable incident of the Services may involve trial and error and that it is a science applied often in novel or unknown circumstances and involving experiment. While We will make all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations, You will always indemnify and hold Us harmless in the provision of our Services to You.

16.2 Reasonable Assistance Limits: We are only obliged to provide what We consider, in Our absolute discretion, to be reasonable assistance in the circumstances under any Plan and You will pay for additional work at the Rates unless otherwise agreed.

16.3 Recommendations, suitability, functionality and fitness for purpose:

• 16.3.1 We may recommend that You purchase Goods provided by third parties from time to time;
• 16.3.2 Recommendations may be made in situations where You have made known to Us the purpose for which the Goods will be used;
• 16.3.3 You acknowledge that We have no control over many factors involved with the suitability, function or fitness for purpose of Goods;
• 16.3.4 You acknowledge that for reasons outside of Our control, the Goods may fail to meet Your expectations;
• 16.3.5 You acknowledge that customisation may be a very substantial project in itself;
• 16.3.6 You will accept the sole responsibility for decisions as to whether or not to follow recommendations by Us and any failure or defect in suitability, function or fitness for purpose;
• 16.3.7 Where We provide Services with a view to achieving Your purposes, You must pay for those Services on time without any set-off or counter-claim.

16.4 Testing Procedures: You will follow Our instructions with regard to testing or troubleshooting any problems.

17. Force Majeure

17.1 If We are unable to supply any Goods or Services due to circumstances beyond Our reasonable control, We may cancel the Order or cease to provide the Services by written notice to You, in which case You will hold Us harmless.

17.2 We will not be liable for any breach of contract due to any matter or thing beyond Our control, including failures by third parties to supply goods, services or transport, stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention or public authority, explosion or accident.

18. Product Specifications

18.1 Alterations to Specifications: We make every effort to supply the Goods in accordance with the Order however We may supply alternate Goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer after the Order date.

18.2 Substitute Goods: If We cannot supply the Goods ordered by You, We may supply alternate Goods of equal or superior quality provided that You will not pay a higher price than the price Quoted.

19. Warranties

19.1 Reliance on Manufacturer’s Warranty: You will rely on the warranties provided by the manufacturer of Goods supplied by Us (where applicable) and will deal direct with such manufacturer rather than Us for all claims covered by such warranties.

19.2 No claim for manufacturer’s default: You indemnify and hold Us harmless in respect of the performance or otherwise, by any manufacturer of Goods supplied to You by Us.

20. Liability

20.1 Exclusion of implied warranties: EXCEPT AS EXPRESSLY STATED IN THESE CONDITIONS OR IN A SIGNED AGREEMENT, AND TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

20.2 Backups and data: You are responsible for maintaining backups of Your programs and Data. You acknowledge that no backup or recovery process is guaranteed to be complete or successful.

20.3 Exclusion of indirect damages: NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, LOST BUSINESS OR LOSS OF GOODWILL, ARISING OUT OF OR RELATING TO THESE CONDITIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY.

20.4 Cap on liability: EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE CONDITIONS WILL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY YOU TO US FOR THE RELEVANT GOODS OR SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

20.5 Causes outside Our control: We are not liable for any loss or damage to the extent caused by acts or omissions of third parties, failures in supply by manufacturers or distributors, loss of power, internet or telecommunications outages, Your equipment or facilities, Your acts or omissions or those of Your users, or any event described in clause 17.

20.6 Exceptions: Clauses 20.3 and 20.4 do not apply to Your obligation to pay amounts due, either party’s indemnification obligations under clause 32, either party’s breach of clause 31, or a party’s gross negligence, willful misconduct or fraud.

20.7 Non-excludable terms: To the extent any legislation implies a condition or warranty that cannot be excluded but can be limited, Our liability is limited, at Our election, to replacing or repairing the Goods or Work, supplying equivalent Goods, Services or Work, or paying the cost of doing any of those things. Nothing in these Conditions excludes, restricts or modifies the application of any state or federal legislation that cannot be excluded, restricted or modified.

20.8 Allocation of risk: These limitations reflect an agreed allocation of risk between the parties, are an essential basis of the bargain, apply even if a limited remedy fails of its essential purpose, and survive termination.

21. Errors and Omissions

21.1 We make every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of an error or omission, We may rescind the affected contract by written notice to You. Our liability in that event will be limited to the return of any money You have paid in respect of the Order.

OUR RESPONSIBILITIES

22. Privacy Statements and Your Rights

22.1 We are collecting Your personal information for the fulfilment of Quotes, Orders and the provision of Goods or Services to you and it may retain and use it for any such purposes (“Authorized Purposes”).

22.2 You are required to provide your personal information to Us for Authorized Purposes.

22.3 We may disclose Your personal information to other persons for the purposes of fulfilling Quotes, Orders and Work for you or in order to provide Goods or Services to You.

22.4 Otherwise We will not disclose Your personal information without Your consent unless authorized by law.

22.5 Your personal information will be held by Us at Our Principal Place of Business and You can contact Us to request to access or correct it.

22.6 We rely on You to submit correct information and details where requested. You accept that You may incur additional expenses if you submit incorrect information.

23. Our Website

23.1 We make no representations or warranties in relation to information available on Our website, including without limitation:

• 23.1.1 that the information on Our website is complete or correct;
• 23.1.2 that Our website will be continuously available or free from any delay in operation or transmission, virus, communications failure, internet access difficulties or malfunction in hardware or software.

24. Insurance Coverage

24.1 We will maintain, at Our own expense, the following insurance: commercial general liability for personal injury and property damage with a general aggregate of not less than $500,000. At Your request We will provide certificates evidencing such coverage within thirty (30) days of commencing this Agreement, at every renewal, and at other times as You may reasonably request.

YOUR RESPONSIBILITIES

25. Creation of Ticket Requests

25.1 In order for Us to provide You with the agreed Service, You agree to follow Our process for creating Ticket Requests as outlined in Appendix A.

26. Access to Systems, Sites and People

26.1 In order to provide You with the agreed Service, You agree to give Us access to various items of Yours including but not limited to, equipment, people and sites as and when required.

26.2 You agree to allow Us to install software on Your Equipment that allows Our technicians to access Your systems at any time. This software allows Us to view system statuses, send monitoring information, see users’ desktops and control Your PC’s. This may require that devices are left on overnight or weekends.

27. Third Party Authorizations

27.1 At times We may need to contact Your third party providers on Your behalf, such as Your internet provider. Some of these providers may require Your authorization for Us to deal on Your behalf. It is Your responsibility to ensure that We are able to deal freely with these providers.

28. Payment, Late Payment and Default

28.1 Payment due date: All invoices issued to You are due and payable to Us within the terms stated on the invoice (unless otherwise agreed in writing) by cash, cheque, credit card or direct deposit.

28.2 7 days late: Where You fail to pay an invoice within seven (7) days of the due date, We may, in Our absolute discretion and without prior notice, suspend or discontinue the supply of Goods and/or Services to You.

28.3 Recoveries: All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by You to Us. If You default in payment of any invoice on time, moneys which would have become due by You at a later date shall be immediately due and payable. Collectively, all of these moneys are referred to as a “Sum Due”.

28.4 Interest: If payment of any Sum Due is not made on time, We will charge interest daily on the Sum Due at the maximum rate allowed by law.

28.5 Application of funds: All payments of the Sum Due made by You to Us will be applied as follows:

• 28.5.1 first in or towards payment of any costs, charges, expenses or outgoings;
• 28.5.2 secondly, in or towards payment of any interest due or payable; and
• 28.5.3 thirdly, in or towards payment of Your debts to Us in order from the longest standing due to the most recently incurred.

28.6 Security: We may require You to provide security over Your property as collateral for any Sum Due.

28.7 Payment arrangements: In the event that a repayment arrangement is made and a payment is missed, We may again suspend or discontinue the supply of Goods or Services to You.

28.8 Other remedies: We may exercise any of Our rights and remedies including taking legal action against You for the recovery of any moneys due to Us.

29. Non-Solicitation of Clients and Employees

29.1 Both parties agree that the other party’s employees are valuable assets. During the course of this Agreement and for a period of eighteen (18) months thereafter (or the maximum period permissible by a Court of competent jurisdiction), neither party shall directly solicit, recruit, or induce any employee of the other party to leave their employment. For the avoidance of doubt, this provision does not restrict either party’s employees from independently responding to public job postings or general recruitment advertising not specifically targeted at the other party’s employees.

29.2 In the event either party violates this provision, the violating party agrees to pay the other party fifty percent (50%) of the employee’s base annual salary as liquidated damages, which both parties agree represents a reasonable estimate of the costs associated with recruiting, hiring, and training a replacement. The non-violating party shall also have the option to terminate this Agreement without further notice or liability.

30. Software

30.1 All Software licences are the responsibility of You and not that of Us. It is Your duty to store all licences for all Software used.

30.2 You indemnify and hold Us harmless against any claim, allegation, loss, damage or expense arising directly or indirectly from:

• 30.2.1 any unauthorized Software use by You;
• 30.2.2 any breach of any Software licence;
• 30.2.3 otherwise as a result of Us installing Software where You are not authorized to use the Software; and
• 30.2.4 any problem, defect or malfunction associated with any Software supplied by third parties.

30.3 All copyright in custom software remains the sole property of Ours unless alternate arrangements are made as part of a separate software agreement.

31. Copyright and Confidentiality

31.1 Warranty and breach: You warrant that any confidential or copyright information or intellectual property provided by You to Us belongs to You. You indemnify and hold Us harmless in respect of any allegations, claims, loss, costs or expenses in connection with such breach of warranty by You.

31.2 Retention of title: All copyright and other intellectual property rights in any Work created by Us in the course of the supply of Services will be the exclusive property of Ours unless otherwise agreed in writing.

31.3 Confidential Information: We acknowledge that in the course of providing Services to You, We may learn certain non-public personal and otherwise confidential information relating to You. We shall regard all such information as confidential.

31.4 You also acknowledge that all information and services, consulting techniques, proposals, and documents disclosed by Us constitute valuable assets and confidential information to Us.

Both parties shall take all commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part of such information in any form, except unless permitted in writing by the disclosing party or as required by applicable law.

32. Indemnification

32.1 Your Indemnification: You agree to indemnify, defend, and hold harmless GP Technology Solutions LLC and its officers, directors, employees, and agents from and against any claims, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees) arising from:

• (a) Your use or misuse of the Services or Goods;
• (b) Your breach of these Conditions or any Agreement;
• (c) third-party claims arising from the operation of Your business or network; or
• (d) any violation of applicable law by You.

32.2 Our Indemnification: We agree to indemnify, defend, and hold harmless You and Your officers, directors, employees, and agents from and against any claims, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees) arising from:

• (a) claims that the Services or Goods infringe a third party’s intellectual property rights; or
• (b) Our gross negligence or willful misconduct in the performance of the Services.

32.3 Cooperation: Both parties agree to cooperate reasonably in the defense of any claims subject to indemnification under this section.

33. Security Incidents and Data Breach Notification

33.1 Your Notification: You agree to notify Us immediately via telephone upon discovering any breach of security affecting Your computers, passwords, security codes, or any systems We manage on Your behalf, so that We may take appropriate precautionary steps to protect Your Data. You agree to tell Us the date and time the condition was first observed by anyone in Your organization, which may be earlier than the date on which You notify Us.

33.2 Our Notification: We agree to notify You within 48 hours of Our discovering any security incident or data breach affecting Your systems, Data, or accounts that We manage. Our notification will include, to the extent known to Us:

• (a) the systems, devices or accounts involved;
• (b) what Our monitoring and the available logs show, including the earliest activity identified by Our monitoring as suspicious and its apparent source;
• (c) the steps We have taken to contain the incident and to preserve evidence; and
• (d) Our recommendations as to further steps, which may include contacting Your insurer and Your legal counsel.

We do not undertake to determine what Data was accessed, viewed or acquired. See 33.5.

33.3 What We Do: On becoming aware of a security incident affecting systems We manage, We will:

• (a) contain the incident, including isolating affected devices and disabling affected accounts;
• (b) preserve evidence in accordance with 33.4;
• (c) restore affected systems and Services; and
• (d) report to You the facts observed, as described in 33.2.

Containment, preservation and reporting are included in the Services. Restoration is chargeable in accordance with Your Plan or at Our then-current rates.

33.4 Preservation: Before repairing, removing or rebuilding an affected system, We will capture and retain evidence that Our own remediation would otherwise destroy, including configuration in place at the time of the incident and logs subject to automatic expiry. This is performed as a matter of course and at no additional charge.

Where preservation requires Us to retain hardware or to acquire additional licensing, We will tell You what it involves and what it costs, and We will proceed on Your instruction.

Evidence We retain is held for 90 days, or for six months where We have recommended that You contact Your insurer or legal counsel, after which it may be destroyed. You may direct Us in writing to release or destroy retained evidence at any time.

33.5 What We Do Not Do: The following are not within the Services and are not performed by Us:

• (a) forensic investigation or attribution;
• (b) review of the content of mailboxes, files or messages to establish what Data was accessed, viewed or acquired;
• (c) determination of whether a security incident constitutes a breach under any law, regulation or contract to which You are subject;
• (d) drafting, approving or issuing breach notifications to individuals, regulators, insurers or payment card networks;
• (e) any regulatory filing; and
• (f) communication or negotiation with any threat actor.

These activities require legal, forensic and regulatory expertise that We do not hold and do not represent that We hold. Nothing We provide constitutes legal advice.

We recommend that You contact Your cyber insurer and Your legal counsel before any investigation is commenced. Most cyber policies limit coverage to vendors the insurer approves, and to work authorized after a claim has been opened, so investigation commenced before that contact is frequently not covered.

We may agree to perform work described in this clause only under a separate written agreement signed by Our principal.

33.6 Cooperation: We will provide to You, and to any adviser You engage, the facts and materials described in 33.2 and 33.4, so that You and Your advisers may fulfill any legal notification obligations You may have.

Our assistance consists of providing what We observed and what We did. It does not extend to determining Your obligations or to discharging them.

Where You engage advisers in connection with a security incident, We will on request act as technical point of contact for those advisers, including providing information about Your environment, retrieving logs and records they request, and arranging access for any imaging or collection they undertake. This assistance is chargeable in accordance with Your Plan or at Our then-current rates. It does not extend to any activity described in 33.5.

33.7 Your Instructions: You may decline any recommendation We make, including a recommendation to contact Your insurer or legal counsel, or to retain evidence at cost. We will record Your instruction, the person who gave it and the time it was given, and We will proceed accordingly. We will not withhold restoration of Your systems on account of a declined recommendation.

An instruction to Us to resolve a security incident is authority to contain, preserve and restore. It does not expand the Services to include anything described in 33.5.

APPENDIX A: Ticket Request Process

How to Submit a Ticket

When you contact us to lodge a service request, only the methods listed in your Client Manual are approved.

Include:

• A short description of the problem
• Any screenshots of errors to assist in the resolution of the issue
• If lodging by phone or email: your name, company and return contact details

Note: Service requests must not be lodged directly with technicians, as this detracts them from resolving the current issue.

Ticket Requests Outside of Our Business Hours

Service Requests that are made outside of our standard business hours may be addressed on a “best effort” basis, without any guaranteed response times or commitments. While you are welcome to lodge requests at any time, please note that we make no guarantee that these requests will be addressed immediately or outside of the next regular business day.

VOICE SERVICES TERMS AND CONDITIONS

Note: These Voice Services Terms supplement the General Terms and Conditions above. The General Terms apply to Voice Services except as modified below. Where these Voice Services Terms conflict with the General Terms, these Voice Services Terms prevail for Voice Services. Where a signed Voice Services Agreement conflicts with either, the signed Voice Services Agreement prevails.

1. Application, Precedence and Definitions

1.1 Application: These Voice Services Terms apply to the supply by Us of voice communications services and related equipment, installation and support (“Voice Services”).

1.2 Order of precedence: If there is any inconsistency, the following order controls: (a) a signed Voice Services Agreement, including its Service Order and exhibits; (b) these Voice Services Terms; (c) the General Terms and Conditions; (d) the Rate Schedule.

1.3 General Terms that do not apply to Voice-only Clients: Where You purchase Voice Services and do not have a signed Managed IT Agreement with Us, the following clauses of the General Terms do not apply to You: clause 14 (Delivery, Title and Risk) as to Company Equipment, which is governed by clause 5 below; clause 26.2 (installation of remote access and monitoring software); and clause 29 (Non-Solicitation).

1.4 Additional definitions: In these Voice Services Terms:

2. Provision of Voice Services

2.1 Scope: We will provide the Voice Services described in Your Service Order in accordance with these Voice Services Terms.

2.2 Internet and equipment dependence: The Voice Services require a functioning internet connection, adequate power and compatible equipment. You are responsible for providing and maintaining those things and for any upgrades needed to maintain compatibility. Power failures, internet outages, network congestion and port blocking by Your internet provider may disrupt the Voice Services, and You may need to reset or reconfigure equipment after such an event.

2.3 Compatibility limitations: You acknowledge that alarm and security systems, fax machines, elevator and fire panel lines, credit card terminals, medical alert devices and similar analog equipment may not operate correctly over the Voice Services and may require a separate analog line. We cannot assure compatibility with every broadband connection, modem or router.

2.4 Calling limitations: The Voice Services do not support 0+ or operator-assisted calling and may not support x11 codes other than 911 and 411. Clause 6 governs emergency calling.

2.5 Geographic scope: The Voice Services are intended for use within the United States and Canada. Use from outside those countries may not function correctly, will not reliably support emergency calling, and is at Your own risk, including as to compliance with local law.

2.6 Telephone numbers: Except for numbers You port in, You do not own the telephone numbers We assign and have no rights in them other than the right to use them during the term and the right to port them out under clause 7.

2.7 Directory listings: Numbers We assign are not published in directory listings unless You request it and We agree. Numbers ported in may retain prior listings, which can affect reverse lookup results.

3. Installation and Pre-Installation Requirements

3.1 Pre-installation survey: You must complete the pre-installation survey accurately and return it to Us before the scheduled installation date. Installation estimates assume the network environment described in that survey.

3.2 Additional labor: If additional labor is required because the survey was incomplete or inaccurate, because cabling, power or network prerequisites are not in place, or because You request configurations or features outside the scope of the Service Order, We will tell You what the additional work involves and what it is estimated to cost, and We will proceed on Your approval at the hourly rate in the Rate Schedule. We will not incur additional hourly charges without first notifying You.

3.3 Optional features: Features such as texting, mobile and desktop applications, call recording and custom integrations may require additional configuration time. If You request them after the scope of work has been agreed, clause 3.2 applies.

3.4 Access: On receiving 48 hours’ notice, You will grant or assist Us in obtaining access to Your premises for installation, repair, maintenance or removal of Our facilities and equipment.

4. Service Availability, Maintenance and Credits

4.1 Availability target: We will use commercially reasonable efforts to make the Voice Services available 99% of the time in each calendar month, measured at Our network, excluding Excused Downtime.

4.2 Excused Downtime: Excused Downtime means unavailability caused by: (a) scheduled maintenance under clause 4.4; (b) emergency maintenance; (c) Your equipment, network, internet service or power; (d) Your acts or omissions or those of Your users or vendors; (e) blocking, throttling or port restrictions imposed by Your internet provider; or (f) any event described in clause 17 of the General Terms.

4.3 Service credits: If availability in a calendar month falls below the target in clause 4.1 for reasons within Our control, You may request a credit equal to the pro-rated monthly recurring charge for the affected Voice Services for the period of unavailability. You must request the credit in writing within thirty (30) days after the end of the affected month. Credits are applied against future invoices and are not refundable in cash. Service credits are Your sole and exclusive remedy for failure to meet the availability target.

4.4 Scheduled maintenance: We may suspend the Voice Services for scheduled maintenance or upgrades outside regular business hours. We will give You at least 48 hours’ notice.

4.5 Maintenance of Our network: We maintain Our facilities and equipment necessary to provide the Voice Services at no additional charge. Where maintenance or a service call is required because of a fault in Your equipment, network or facilities, We will tell You before proceeding and will bill the work at the rates in the Rate Schedule.

5. Equipment

5.1 Purchased equipment: Equipment You purchase outright becomes Your property on full payment. Risk of loss passes to You on delivery.

5.2 Company Equipment: Company Equipment remains Our property at all times and may be redeployed to other clients after return. You will not sell, lease, encumber, relocate or modify Company Equipment without Our prior written consent, and will not permit any lien to attach to it. You will not be charged rent or any hosting fee for Company Equipment at Your premises.

5.3 Risk of loss: From delivery until return, You are responsible for loss of or damage to Company Equipment other than ordinary wear and tear and failures covered by clause 5.7. If Company Equipment is lost, stolen or damaged beyond repair while in Your possession, You will pay the then-current replacement cost of comparable equipment.

5.4 Return of Company Equipment: Within ten (10) business days after termination, You will either make Your premises available during normal business hours so We can retrieve Company Equipment, or return it to Us using the method We specify, in the condition delivered, ordinary wear and tear excepted. If You do neither within that period, You will pay the then-current replacement cost of the unreturned equipment plus Our reasonable retrieval costs. You acknowledge that removal of Our equipment may affect Your operations.

5.5 Firmware and software: We grant You a limited, non-exclusive, non-transferable, revocable license to use the firmware and software embedded in or supplied with the Voice Services, in object code form only, solely in connection with the Voice Services and solely during the term. You will not copy, modify, distribute, sublicense, reverse engineer, decompile or disassemble it, except where that restriction is prohibited by law.

5.6 Third-party equipment: If You use equipment We did not supply, You are responsible for obtaining all necessary licenses for it, for its configuration and compatibility, and for any resulting degradation of the Voice Services. We will use reasonable efforts to support its use with the Voice Services but do not warrant compatibility.

5.7 Equipment warranty: We warrant new Devices We supply against defects in materials and workmanship for twelve (12) months from delivery, and Company Equipment for the duration of the lease. This warranty does not cover damage from misuse, abuse, accident, modification, improper installation by anyone other than Us, power surge or causes external to the equipment. We may use refurbished parts. Your sole remedy is repair or replacement at Our option under Our return authorization process.

6. Emergency Calling (911)

Please read this clause carefully and make sure Your facilities manager and safety personnel have read it.

6.1 How VoIP 911 differs: Emergency calling over the Voice Services works differently from traditional wireline 911 and Enhanced 911. It depends on power, internet connectivity and the accuracy of the location information You register with Us.

6.2 Direct dialing: The Voice Services are configured so that a user can dial 911 directly, without first dialing a prefix, access code or any additional digit.

6.3 On-site notification: Where the system is capable of doing so without an improvement to its hardware or software, a notification is sent when a 911 call is placed to the recipients You designate. You will identify those recipients on the pre-installation survey and will keep them current. Notification recipients should be persons likely to be on or near the premises and able to assist responders.

6.4 Registering a Dispatchable Location: You must register a complete Dispatchable Location with Us for every Device, including building, floor, suite, room or similar detail sufficient for responders to find the caller. The accuracy of the location conveyed with a 911 call depends entirely on the information You register and maintain.

6.5 Keeping locations current: You must update the Registered Location before or immediately after moving any Device to a different location. This includes a user taking a handset or softphone to a home office, another site or any temporary location. You are responsible for maintaining accurate location information for all remote, teleworking and nomadic users, and will use the method We provide for updating it.

6.6 Limitations: Emergency calling may not function during a power outage, an internet outage, network congestion, port blocking by Your internet provider, suspension of the Voice Services or after termination.

6.7 Call routing and caller information: Depending on the capability of the emergency center serving the Registered Location, a 911 call may be routed to a local public safety answering point or to a national emergency call center. Operators may not automatically receive the caller’s number or location. Users should be prepared to state their location and callback number verbally.

6.8 Your obligation to inform users: You will inform all employees, contractors, guests and other persons who may use the Voice Services at Your locations of the limitations described in this clause, and will place warning labels on or near Devices where appropriate. We will supply warning labels on request.

6.9 Acknowledgment: You will execute Our 911 Service Acknowledgment before the Service Commencement Date and a further acknowledgment for each additional location.

6.10 Alternative arrangements: Because of the limitations above, You should maintain an alternative means of reaching emergency services, such as a mobile phone or a dedicated analog line. If these limitations are unacceptable to You, You should not rely on the Voice Services for emergency calling.

6.11 Allocation of responsibility: We do not control how any emergency call center answers or handles a 911 call and are not responsible for the conduct of those centers. Subject to clause 12.4, You will indemnify Us against third-party claims arising from 911 calls placed over the Voice Services, except to the extent the claim arises from Our gross negligence or willful misconduct or from Our failure to comply with clauses 6.2, 6.3 and 6.4.

7. Number Porting

7.1 Porting in: We will use commercially reasonable efforts to port Your existing numbers to Our network. You will provide a current copy of Your bill from the losing carrier and accurate account information. Inaccurate or incomplete information on the Letter of Authorization is the most common cause of delay.

7.2 Timing: Once a port request is submitted and accepted, the losing carrier typically confirms a firm order commitment date within one business day for a simple port and four business days for a complex port. Actual completion depends on the losing carrier and on the accuracy of the information supplied, and commonly takes two weeks from the date You provide Us with complete information.

7.3 Porting out: On Your request We will cooperate promptly and in good faith with any valid request to port Your numbers to another provider, in accordance with FCC local number portability rules. We will not delay, condition or refuse a port-out because You owe Us money. Any amounts You owe remain payable and We will pursue them separately.

7.4 Effect on service: Porting a number away ends the Voice Services associated with that number. If You are porting away all numbers on an account, You must also give notice of termination under clause 13, and any Early Termination Fee remains payable under clause 13.4.

8. Acceptable Use and Fair Use

8.1 Lawful use: You will use the Voice Services only for lawful purposes and in compliance with all applicable laws and regulations.

8.2 Telemarketing and caller identification: You are responsible for complying with the Telephone Consumer Protection Act, the Truth in Caller ID Act, applicable do-not-call rules and all federal and state telemarketing, prerecorded message and robocall requirements. You will not transmit misleading or inaccurate caller identification information in violation of applicable law. You will indemnify Us against any third-party claim, fine or penalty arising from Your breach of this clause.

8.3 No resale: You will not resell, sublicense or otherwise make the Voice Services available to third parties without Our prior written consent.

8.4 Unlimited plans: Plans described as unlimited are intended for normal business use by individual users. They are not intended for call center, autodialing, predictive dialing, fax broadcasting, voicemail broadcasting, telemarketing, continuous call generation or similar high-volume applications. Usage on an unlimited plan exceeding the allotted minutes per seat per month is outside the intended use of the plan.

8.5 Response to excessive use: If Your usage exceeds the threshold in clause 8.4 or shows patterns inconsistent with normal business use, including a high frequency of very short calls or sustained automated dialing, We will notify You and give You a reasonable opportunity to correct it. If it continues, We may move You to a metered plan or bill the excess at the per-minute rate in the Rate Schedule. Where usage presents an immediate risk to Our network or to other clients, clause 13.2 applies.

8.6 Prohibited uses: You will not use the Voice Services or any Device to: violate any law or regulation; transmit threatening, abusive, harassing, defamatory or fraudulent communications; gain unauthorized access to any network or system; interfere with the operation of the Voice Services; alter or tamper with device identifiers, MAC addresses or caller identification except as permitted by law; or circumvent usage limits or billing.

8.7 Monitoring: We may monitor usage volumes and calling patterns for billing, network management, fraud prevention and enforcement of this clause. We do not monitor the content of calls except as required by law.

8.8 Reporting: We may report suspected unlawful use to law enforcement and may disclose relevant information in response to valid legal process.

9. Account Security, Toll Fraud and Call Recording

9.1 Credentials: You will safeguard account credentials, extension passwords, voicemail PINs and administrative access, will use strong and unique passwords, and will notify Us immediately on discovering any unauthorized access or use.

9.2 Toll fraud: You are responsible for charges resulting from unauthorized use of the Voice Services through Your account or Your equipment, including toll fraud, until You notify Us of the unauthorized use. We will use commercially reasonable efforts to monitor for unusual calling patterns and to notify You when We detect them, but We do not guarantee detection or prevention.

9.3 International calling controls: International calling is disabled by default and enabled only at Your request. Where available, We will apply the monthly international spend cap stated in Your Service Order. A cap is a control, not a guarantee, and does not limit Your responsibility under clause 9.2.

9.4 Call recording: If You use any call recording feature, You are solely responsible for complying with all applicable federal and state recording and consent laws, including in states requiring the consent of all parties to a call. You will indemnify Us against any claim arising from Your use of call recording.

10. Charges, Taxes and Regulatory Fees

10.1 Rates: Charges for the Voice Services are set out in Your Service Order and the Rate Schedule, including rates for usage and overage, international destinations, toll-free inbound and payphone-originated surcharges, directory assistance, conference bridge minutes and additional labor.

10.2 Billing cycle: Recurring charges are billed monthly in advance. Usage, overage, international, toll-free inbound and other variable charges are billed monthly in arrears. Non-recurring charges are billed as incurred.

10.3 Taxes and regulatory fees: Charges are exclusive of taxes, surcharges and regulatory fees. You are responsible for all federal, state and local taxes, fees and surcharges imposed on the Voice Services, including Universal Service Fund contributions and state and local 911 fees, all of which will be itemized on Your invoice.

10.4 Tax exemption: If You are tax-exempt, You must provide a valid and legally compliant exemption certificate. The exemption applies prospectively from the date We receive it.

10.5 Billing disputes: You may dispute an invoiced charge in good faith by giving Us written notice within thirty (30) days after the invoice date, stating the amount disputed and the basis for the dispute. You must pay all undisputed amounts when due. We will not suspend the Voice Services for non-payment of an amount properly disputed under this clause while the dispute is being resolved in good faith. This clause modifies clause 28.2 of the General Terms for Voice Services.

10.6 Reactivation: Where the Voice Services have been suspended or disconnected for non-payment, restoration requires payment of amounts due and the reactivation fee in the Rate Schedule.

11. Customer Proprietary Network Information and Confidentiality

11.1 CPNI: In providing the Voice Services We collect Customer Proprietary Network Information as defined in section 222 of the Communications Act, including information about the quantity, technical configuration, type, destination, location and amount of Your use of the Voice Services. We will use, disclose and permit access to Your CPNI only as permitted or required by section 222 and applicable FCC rules.

11.2 Safeguards: We maintain commercially reasonable administrative, physical and technical safeguards designed to protect CPNI and Your other data in Our systems against unauthorized access, use or disclosure, and We authenticate account holders before disclosing call detail information.

11.3 Security incidents: Clause 33 of the General Terms applies to security incidents affecting the Voice Services. Where a security incident involves CPNI, We will also comply with any applicable FCC breach notification requirements.

11.4 Confidentiality: Clause 31 of the General Terms applies to the Voice Services.

12. Liability

12.1 Exclusion of indirect damages: NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, LOST BUSINESS OR LOSS OF DATA, ARISING OUT OF OR RELATING TO THE VOICE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY.

12.2 Cap on direct damages: EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE VOICE SERVICES WILL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY YOU FOR THE VOICE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12.3 Causes outside Our control: We are not liable for delay, failure, interruption or degradation of the Voice Services to the extent caused by acts or omissions of third parties, failures of third-party equipment or facilities, loss of power, internet or ISP outages or port blocking, Your equipment, the acts or omissions of You or Your users, or any event described in clause 17 of the General Terms. This includes inability to complete an emergency call during a power or internet outage.

12.4 Exceptions: Clauses 12.1 and 12.2 do not apply to: Your obligation to pay amounts due; either party’s indemnification obligations; either party’s breach of clause 11 or clause 31 of the General Terms; or a party’s gross negligence, willful misconduct or fraud.

12.5 Service credits: Credits under clause 4.3 count against the cap in clause 12.2.

12.6 Allocation of risk: These limitations reflect an agreed allocation of risk, are an essential basis of the bargain, and apply even if a limited remedy fails of its essential purpose. They survive termination.

13. Suspension and Termination

13.1 Termination for cause: Either party may terminate the Voice Services if the other materially breaches and fails to cure within ten (10) days after written notice in the case of non-payment, or thirty (30) days after written notice in the case of any other breach.

13.2 Immediate suspension: We may suspend the Voice Services immediately, with as much notice as is reasonably practicable, where Your use violates clause 8.6, presents an imminent threat to the security, integrity or lawful operation of Our network or another client’s service, or where suspension is required by law or by order of a court or regulatory authority. We will limit any suspension to the scope and duration reasonably necessary and will restore the Voice Services promptly once the cause is resolved.

13.3 Termination by Us for convenience: We may terminate the Voice Services for convenience on ninety (90) days’ notice. In that case You owe charges only through the termination date, no Early Termination Fee applies, and We will cooperate fully with porting Your numbers to another provider.

13.4 Early Termination Fee: If the Voice Services are terminated before the end of the term by You for any reason other than Our uncured material breach, or by Us under clause 13.1 or 13.2, You will pay all charges accrued through the termination date plus the Early Termination Fee calculated under Your Voice Services Agreement. That is the only early termination charge payable. No other clause of these Voice Services Terms or of the General Terms imposes an additional or separate termination charge.

13.5 Notice: Notice of termination or non-renewal must be in writing. We will acknowledge receipt of notice sent by email.

13.6 Effect of termination: On termination Your right to use the Voice Services ends, all accrued charges and any Early Termination Fee become due on Our final invoice, You will return Company Equipment under clause 5.4, and We will cooperate with number porting under clause 7.3.

13.7 Survival: Clauses 5.3, 5.4, 6.11, 8.2, 9.2, 9.4, 10, 11, 12, 13 and 15 survive termination.

14. Changes to These Voice Services Terms

14.1 Notice of changes: We may change these Voice Services Terms or the Rate Schedule on at least thirty (30) days’ notice sent to Your Primary Contact email address and posted on Our website. If a change materially and adversely affects You, You may terminate the affected Voice Services without an Early Termination Fee by giving Us written notice within thirty (30) days after Our notice. Continued use of the Voice Services after the effective date of a change, without such a notice, constitutes acceptance. This clause modifies clause 8.1 of the General Terms for Voice Services.

14.2 Pass-through changes: Changes to taxes, regulatory fees, surcharges and third-party pass-through charges imposed on Us take effect when imposed and are not subject to clause 14.1.

14.3 Rates during the term: Recurring rates stated in Your Service Order are fixed for the initial term except as provided in clause 14.2 and in Your Voice Services Agreement.

15. Governing Law and Dispute Resolution

15.1 Governing law: These Voice Services Terms are governed by the laws of the State of Arkansas, without regard to its conflict of laws principles.

15.2 Informal resolution: Before commencing any proceeding, each party will give the other written notice describing the dispute and will attempt in good faith to resolve it for thirty (30) days.

15.3 Jury waiver: ALL CLAIMS MUST BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. EACH PARTY WAIVES ANY RIGHT TO TRIAL BY JURY.

15.4 Attorney fees: The prevailing party in any proceeding relating to the Voice Services is entitled to recover its reasonable attorney fees and costs, including costs of enforcing an arbitration award.

15.7 Limitations period: Any claim arising out of the Voice Services must be brought within one (1) year after the cause of action accrues, except claims for non-payment.

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