Master Terms and Conditions
Effective October 1, 2013
THESE MASTER TERMS AND CONDITIONS ("MTCs") apply to all service orders, service tickets, work orders, service level agreements, and other contracts, agreements and invoices (collectively, the "Instruments") between EasyLink Services International Corporation and its affiliates or subsidiaries specified in an Instrument (collectively, "EasyLink") and any customer (the "Customer") specifically identified in an Instrument that is signed by both EasyLink and the Customer, to the extent that these MTCs are expressly incorporated by reference in any such Instrument. These MTCs are governed by and subject to EasyLink's Acceptable Use Policy, and which is hereby incorporated by reference. EasyLink may modify its Acceptable Use Policy from time to time in its sole discretion as provided herein. By using the Services (as defined herein) from EasyLink, Customer agrees to be bound by EasyLink's Acceptable Use Policy.
These MTCs, together with each applicable service order (each, a "Service Order") pursuant to which the Customer orders one or more services from EasyLink and any other Instruments and other documents incorporated by reference herein or in any Service Order or Instrument (including, without limitation, EasyLink's Acceptable Use Policy), are collectively referred to as the "Agreement".
- Service Orders. The services to be provided by EasyLink and purchased and paid for by Customer are as set forth in each applicable Service Order, signed by EasyLink and Customer, as they may be amended from time to time (as so defined, the "Services").
- Term. EasyLink will provide, and the Customer will purchase and pay for, the Services indicated in each Service Order for the duration of the term indicated in such Service Order. At the end of any such Service Order term, unless specified otherwise in the applicable Service Order, the term of the Service Order will automatically renew on an annual basis for successive one-year terms until either party terminates the Service Order by providing written notice of termination to the other party at least thirty (30) days prior to the expiration of the then-current term. For all Service Orders without a fixed number of months or years, the Service Order will remain in full force until terminated as provided herein.
- Software as a Service; Equipment. Customer acknowledges that EasyLink is in the business of providing software-as-a-service. Customer will be wholly responsible for providing any customer premises equipment that might be necessary for Customer to utilize the Services and for installation and training.
- Price: Minimum Commitment. Customer agrees to pay the price indicated for the Services in the applicable Service Order. Unless the Service Order provides otherwise, and except for fee increases due to increased charges to EasyLink for number porting and related fees and telecommunication carrier charges, EasyLink may not change the prices for the Services at any time during the initial terms of the Agreement unless mutually agreed to by the parties in writing. Any increases in fees due to increased charges to EasyLink as referenced above shall be effective thirty (30) days after Customer has received notice thereof. Unless the Service Order provides otherwise, all prices are quoted in Australian dollars and Customer must pay all charges or invoices in Australian dollars. Customer agrees to pay for the Services used each month and, to the extent set forth in any Service Order, further agrees to a minimum periodic commitment for use of the Services as specified in such Service Order for each applicable period set forth in such Service Order during the term of such Service Order (the "Minimum Commitment"). In the event that Customer does not meet its Minimum Commitment in any given period during the term of the applicable Service Order, EasyLink shall invoice for, and Customer shall pay, within thirty (30) days of the invoice date, the shortfall equal to the difference between the Minimum Commitment for such period and any payments for actual usage of Services made by Customer during such period. Any shortfall payments shall be in addition to Customer's payment of any fees for Services used during the applicable period.
- Payment. Customer must pay all invoices within thirty (30) days of the invoice date. Customer must notify EasyLink of any charge disputed in good faith, with supporting documentation, within sixty (60) days from the invoice date, or Customer will be deemed to agree to such charges and no adjustments to charges or invoices will be made. Customer shall continue to be responsible to pay for the charges by the due date, other than those charges that are being reasonably disputed in good faith. Customer will pay interest at the rate of 1.5% per month, or the highest rate permitted by applicable law, whichever is less, with respect to any amounts not paid when due, other than amounts being reasonably disputed in good faith under these MTCs. All invoices are fully earned when due and non-refundable when paid. Customer will reimburse EasyLink for all costs, including reasonable attorneys' fees, court costs, bank charges and other consequential fees and expenses, if EasyLink utilizes the services of a collections agency or attorney to collect any amounts due and unpaid hereunder. If any cheque tendered by Customer is returned for insufficient funds, Customer will pay, in addition to the invoice amount and any interest due to EasyLink, as liquidated damages but not as a penalty and representing a genuine pre-estimate of the loss suffered by EasyLink for dishonoured payment, a cheque dishonour fee equal to the greater of $30 or five percent of the amount of the cheque. Customer will pay, and EasyLink reserves the right to collect in arrears, all applicable sales, use, excise or other taxes (other than taxes based on EasyLink's net income), fees or charges for universal support mechanisms (including without limitation any and all federal or state Universal Service Fund charges) or other charges of any nature whatsoever, now or hereafter imposed or assessed on EasyLink, by any foreign, federal, state/provincial, county or local government authority upon or with respect to the Services provided ("Taxes"). If Customer claims exemption from Taxes, Customer must provide EasyLink with a current, valid exemption certificate from the applicable regulatory authority. In all events, payment of EasyLink invoices shall not be dependent upon a Customer-generated purchase order. If Customer desires for an EasyLink invoice to reference a Customer purchase order, Customer shall deliver to EasyLink a written purchase order within ten (10) days of the execution of a Service Order. As set forth in Section 11(d) below, the Agreement constitutes the entire agreement between the parties, and if there is any additional, inconsistent or conflicting terms between the Agreement and a Customer purchase order, the Agreement shall prevail and any additional, inconsistent or conflicting terms contained in a purchase order shall be null and void unless expressly agreed to in writing by a duly authorized representative of EasyLink.
- Credit Evaluation. If EasyLink extends credit to Customer, Customer hereby authorizes EasyLink, to the extent permitted by applicable law, to request, obtain and exchange credit information regarding Customer as needed for credit evaluation purposes.
- Customer Requirements. Customer agrees that it: (i) must follow all rules and requirements pertaining to the Services as set forth in this Agreement, (ii) is solely responsible for the hardware, software and network connectivity required by Customer to connect to, and utilize, the Services except to the extent any such hardware, software or connectivity is expressly provided by EasyLink pursuant to a Service Order signed by EasyLink, (iii) may not utilize the Services in connection with or in furtherance of any activity that violates applicable law or that violates the intellectual property rights of any third-party or that creates in any third-party a right of action against any person or entity (a "Person"), (iv) may not utilize the Services in any manner that violates EasyLink's Acceptable Use Policy, (v) may not reverse engineer, decompile or attempt to derive the source code of any software provided by EasyLink in connection with the Services, and (vi) may not rent, lease or resell the Services unless Customer is party to a written agreement with EasyLink that expressly permits such activity.
- At any time when there is no Service Order in effect, Customer may terminate the Agreement immediately by giving written notice to EasyLink. If EasyLink materially breaches a Service Order and fails to cure such material breach within 30 days after receiving written notice thereof from Customer, Customer may terminate the applicable Service Order immediately thereafter by giving written notice to EasyLink.
- EasyLink may terminate any or all Service Orders, the Agreement, and/or suspend the provision of Services to Customer, in EasyLink's sole discretion, immediately upon notice to Customer if: (A) Customer fails to pay an invoice not reasonably disputed in good faith when due (including without limitation any Minimum Commitment shortfall amount), (B) Customer breaches any of its representations, warranties or covenants or Customer violates any of its duties or obligations under the Agreement or any Service Order, (C) Customer violates the EasyLink Acceptable Use Policy, (D) Customer violates applicable law through or in connection with its utilization of the Services, (E) it is deemed reasonably necessary by EasyLink to prevent interruption or disruption to EasyLink's network, its business or other customers, (F) as provided in Section7(d) of these MTCs, (G) Customer becomes unable to pay its bills as they become due, (H) Customer becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, or (I) Customer becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
- EasyLink shall not be liable to Customer or any third-party should EasyLink exercise its right to discontinue Services, in whole or in part, or terminate the Agreement or any or all Service Orders pursuant to Section 2(h)(ii) above. In the event of termination of any Service Order that specifies a Minimum Commitment, Customer shall pay to EasyLink as liquidated damages in respect of the termination of such Service Order only (and not in respect of the termination of any other Service Orders), but not as a penalty and representing a reasonable estimate of the probable loss to EasyLink from the termination of such Service Order, the shortfall resulting from Customer's failure to meet such Minimum Commitment for the term of such Service Order, which amount shall equal (X) such periodic Minimum Commitment multiplied by the total number of applicable periods occurring in the term of such Service Order, less (Y) any payments for actual usage of Services made by Customer during the term of such Service Order; provided, however, no payments over and above the Minimum Commitment for any one period shall apply to or in any way be credited against any other, past or present, periodic Minimum Commitment or the overall shortfall amount for the term of such Service Order.
- Intellectual Property
- EasyLink Intellectual Property. As between EasyLink and Customer, EasyLink owns all patent, copyright, trademark, trade secret and other intellectual property rights that may exist (i) in the Services (including any custom application(s) developed for Customer or resulting from a collaboration between EasyLink and Customer), the EasyLink equipment and the network that may be utilized to provide the Services, (ii) any software or hardware provided by EasyLink to Customer to facilitate Customer's utilization of the Services, (iii) any domain names provided by EasyLink in connection with the provision of the Services, and (iv) any information, data, trends, analyses, metadata or other data which may be derived from any of the foregoing that is derived or created by EasyLink by reference to the Services, EasyLink's network and Customer's usage of the EasyLink Services (subject, at all times, however, to EasyLink's obligation of confidentiality in favor of Customer as provided in Section 4 below) (all of the foregoing intellectual property being the "EasyLink Transactional IP").
- Customer Intellectual Property. As between Customer and EasyLink, Customer owns all patent, copyright, trademark, trade secret and other intellectual property rights that may exist (i) in any data or communications transmitted or processed by Customer through the Services (the "Customer Content"), (ii) in any domain names provided by Customer in connection with the utilization of the Services, and (iii) in any data generated solely by Customer that identifies Customer or any of Customer's employees or any of Customer's vendors, customers or trading partners (all of the foregoing intellectual property being the "Customer Transactional IP").
- Mutual Respect. EasyLink agrees to assert no claim of ownership over the Customer Transactional IP and Customer agrees to assert no claim of ownership over the EasyLink Transactional IP.
- Data Security and Confidentiality.
- Confidentiality. In connection with the Services, EasyLink and Customer will each have access to confidential or proprietary information of the other party that is subject to reasonable limitations and restrictions that are intended to maintain the secrecy and confidentiality of such information (as applicable, "Confidential Information"). Confidential Information may include, but is not limited to, trade secrets, know-how, inventions, techniques, processes, computer programs, schematics, data, customer lists, financial information and sales and marketing plans. Without limiting the foregoing, the Agreement and the pricing terms referenced therein shall be considered Confidential Information of EasyLink. Each party will not, without the prior written consent of the other party, use or disclose to any Person any Confidential Information of the other party disclosed or made available to it, except for use of such Confidential Information as required in connection with the performance of its obligations or use of the Services hereunder. Each party (as applicable, a "Recipient") will (i) treat the Confidential Information of the other party (as applicable, a "Discloser") as secret and confidential, (ii) limit access to the Discloser's Confidential Information to those of the Recipient's employees who require it in order to effectuate the purposes of the Agreement, and (iii) not disclose the Discloser's Confidential Information to any other Person without the prior written consent of the Discloser. Notwithstanding the foregoing, however, the following shall not be considered Confidential Information: (i) any information that the Recipient can demonstrate was within its legitimate possession prior to the time of disclosure by the Discloser; (ii) any information that was in the public domain prior to disclosure by the Discloser; (iii) any information that, after disclosed by the Discloser, comes into the public domain through no fault of the Recipient, (iv) any information that is disclosed to the Recipient without restriction by a third-party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any trade secret that is no longer protected under applicable law.
- Use of Customer Information. In connection with the Services, EasyLink may have access to Customer Transactional IP, including Customer Confidential Information, and EasyLink may use such Customer Transactional IP and Customer Confidential Information to the extent such use is required to provide the Services to maintain the security and integrity of the Services and EasyLink's networks, and to facilitate or confirm EasyLink's compliance with its legal obligations, provided, however, that EasyLink may not use the Customer Transactional IP or Customer Confidential Information for any other purpose. Notwithstanding its obligations of confidentiality in these MTCs, EasyLink may disclose Customer Confidential Information (1) in response to a subpoena or court order, (2) in response to an administrative order or other directive from a governmental entity having jurisdiction over EasyLink, or (3) in response to a request from a law-enforcement agency, or (4) as otherwise required by applicable law.
- Disclosure Notification Laws. Customer must notify EasyLink of any suspected breach in security or integrity affecting Customer's access to the Services, any suspected breach in security or integrity to the Services or EasyLink's networks, or any suspected breach in security or integrity in Customer's Transactional IP. To the extent any applicable law requires Customer to notify other Persons or any suspected breach in security or data integrity involving the personal or transactional data of such Persons which data is contained within the Customer Transactional IP (such laws being "Disclosure Notification Laws"), Customer shall be wholly responsible for its compliance with such Disclosure Notification Laws. To the extent any such Disclosure Notification Laws obligate EasyLink to take any action or provide notification to any person as a consequence of personal or transaction data of any Person contained within the Customer Transactional IP, Customer shall be wholly responsible for taking such action or providing such notification and Customer shall reimburse EasyLink for its reasonable costs and expenses to the extent that EasyLink performs any such action or provides any such notification.
- Return. Each party agrees to immediately return to the other party or destroy all Confidential Information of the other party in its possession, custody or control in whatever form held (including all copies of all written documents relating to that) upon termination of the Agreement or at any time, or from time to time, upon the request of the other party.
- Customer Compliance
- Customer acknowledges that EasyLink has no control over the content of information and/or distribution lists provided by Customer and transmitted through the Services (whether visual, written or audible) and that EasyLink does not examine the use to which Customer puts the Services or the nature of the information Customer or Customer's users send or receive. Customer agrees not to transmit content through use of the Services that infringes any third-party's intellectual property rights or that is unlawful, threatening, abusive, harassing, libelous, slanderous, deceptive, fraudulent, invasive of another's privacy, vulgar, obscene or otherwise contains objectionable material of any kind or nature. Customer also warrants to EasyLink that any and all distribution lists provided by Customer to EasyLink: (i) are based upon consent (as defined in Spam Act 2003 ("Spam Act"); (ii) have not been obtained through address-harvesting software or any other unlawful electronic collection of addresses or any other public or private source; and (iii) are complete, accurate and updated for any opt-outs, as applicable and required by law. Customer is responsible for maintaining the confidentiality of, and shall not transfer sell or assign, access numbers, passwords and user names provided by EasyLink solely for use by Customer. It is the sole responsibility of Customer to use Services in accordance with all applicable local, state/provincial, federal and foreign laws and regulations, including but not limited to, the Do Not Call Register Act 2006, the Spam Act, and all other laws and regulations pertaining to telemarketing, facsimile advertising, commercial e-mail, personal data privacy and export control. CUSTOMER ACKNOWLEDGES THAT THE ADVERTISING OF GOODS, PRODUCTS OR SERVICES BY THE TRANSMISSION OF UNSOLICITED VOICE MESSAGES, FACSIMILES, E-MAIL OR TEXT MESSAGES MAY BE IN VIOLATION OF FEDERAL, STATE, PROVINCIAL, AND FOREIGN LAWS AND REGULATIONS AND MAY SUBJECT THE ADVERTISER TO PENALTIES. Breach by Customer of this Section 5 will constitute grounds for immediate suspension by EasyLink of Services and termination of any or all Service Orders and the Agreement. Compliance with this Section 5 requires, among other things, that (i) Customer send unsolicited commercial faxes only to parties with whom Customer has given consent (as defined in the Spam Act), (ii) all messages sent by Customer utilizing the Services, in whatever medium, contain the valid name and required contact information for Customer (which in the case of faxes sent by Customer shall appear on the first page of each fax), (iii) Customer provide recipients with a cost-free mechanism by which they may "opt-out" of receiving future calls or transmissions and (iv) Customer honor all such opt-out requests within the shortest reasonable period of time (but no longer than 30 days). Customer further acknowledges that, notwithstanding the confidentiality provisions contained herein, EasyLink may disclose usage information about Customer's use of Services to satisfy any law, regulation, government agency request, court order, search warrant, subpoena or other legal process.
- In the event Customer utilizes Services to conduct telemarketing activities or disseminates materials offering the availability of goods or products or services, Customer specifically warrants to EasyLink: (i) that it will undertake all required actions necessary to comply with applicable federal, state/provincial or foreign "Do Not Call" and telemarketing registration statutes and regulations, (ii) it will comply with all requirements of the Spam Act and (iii) Customer will not utilize the Services in a manner which results in a violation of any applicable laws or regulations with respect to such Services.
- When EasyLink provides Customer with assigned telephone and/or facsimile numbers for processing opt-out requests, Customer understands and acknowledges that such numbers and any associated automated functions are provided merely as an administrative convenience to Customer and that the processing of such opt-out requests is Customer's responsibility. EasyLink disclaims all responsibility for and authority over, the receipt and processing of any opt-out requests.
- Customer represents, warrants and covenants to EasyLink that Customer will not, directly or indirectly, use the Services in furtherance of or in connection with any activity that violates applicable laws and regulations (i) relating to export restrictions administered by the Department of Commerce Bureau of Industry and Security, (ii) relating to arms and defense weapons administered by the Department of State's Directorate of Defense Trade Controls, or (iii) relating to economic and trade sanctions imposed by the Department of Treasury Office of Foreign Asset Control.
- Service Errors and Remedies
- Service Performance. EasyLink will provide the Services in accordance with EasyLink's services as published on its website and in a manner intended to provide for the timely delivery of communications, the accurate consummation of transactions, and the ongoing accuracy and integrity of data and communications processed through its networks and its Services, and otherwise as provided by the applicable Service Order. EasyLink is not responsible, and disclaims any intention, to provide or comply with any special instructions, additional specifications, or requirements not listed in such published documentation pertaining to the Services.
- DISCLAIMER. EASYLINK'S SERVICES RELY ON THE INTEROPERABILITY OF EASYLINK'S SERVICES WITH THE NETWORKS OF THIRD PARTIES, PUBLIC SWITCHED TELEPHONY NETWORKS, INTERNET ACCESS PROVIDERS, INTERNATIONAL SATELLITE SERVICES AND OTHER COMMUNICATIONS FACILITIES AND CAPABILITIES MAINTAINED BY PERSONS OUTSIDE OF EASYLINK'S CONTROL. EASYLINK CANNOT GUARANTEE THAT ITS SERVICES WILL BE AVAILABLE AT ALL TIMES, THAT ITS SERVICES WILL BE FREE FROM ERRORS, THAT ITS NETWORKS WILL BE COMPLETELY SECURE, OR THAT ITS SERVICES WILL BE FIT FOR THE PURPOSE INTENDED BY CUSTOMER.
- SOLE REMEDY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, AND EASYLINK'S SOLE OBLIGATION, FOR ANY FAILURE OF THE EASYLINK'S SERVICES TO PERFORM AS REQUIRED BY THE AGREEMENT, SHALL BE FOR EASYLINK AT ITS OPTION, TO RE-PERFORM THE DEFECTIVE SERVICES AT NO COST TO CUSTOMER, OR, IN THE EVENT OF INTERRUPTIONS TO THE SERVICES, ISSUE CUSTOMER A CREDIT IN AN AMOUNT EQUAL TO THE MONTHLY FEES APPLICABLE TO CUSTOMER FOR THE INTERRUPTED SERVICE PRORATED BY THE NUMBER OF HOURS DURING WHICH THE SERVICES HAVE BEEN INTERRUPTED. EASYLINK SHALL HAVE NO OBLIGATION, HOWEVER, IN RESPECT OF ANY INTERRUPTION OR DEFECTS IN THE SERVICES (I) CAUSED BY FACTORS OUTSIDE OF EASYLINK'S REASONABLE CONTROL, (II) THAT RESULTED FROM ANY ACTIONS OR INACTIONS OF CUSTOMER OR ANY THIRD PARTIES, OR (III) THAT RESULTED FROM CUSTOMER'S EQUIPMENT OR ANY THIRD-PARTY EQUIPMENT THAT IS NOT WITHIN THE SOLE CONTROL OF EASYLINK.
- Customer shall defend, indemnify and hold harmless EasyLink, its affiliates and their respective present, former and future officers, directors, employees, agents and suppliers, and their respective heirs, legal representatives, successors and assigns (collectively the "EasyLink Indemnitees"), from and against any and all claims, losses, damages, costs, penalties, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys' fees) (collectively, "Losses") which any of the EasyLink Indemnitees may suffer, incur or sustain resulting from or arising out of (i) the breach by Customer or any Person accessing the Services through Customer or Customer's account (a "Customer User") of any representation, warranty, covenant or obligation contained in the Agreement, (ii) the Customer Content or the use of the Services by Customer or any Customer User, (iii) violation by Customer or any Customer User of EasyLink's Acceptable Use Policy, (iv) violation or alleged violation by Customer or any Customer User of any applicable laws or regulations with respect to the Services, including but not limited to, any claims that Customer's use of the Services violated the rights of any third-party (including those claims relating to the content provided by Customer or any Customer User or EasyLink's use of distribution lists on behalf of Customer or any Customer User), claims relating to the transmission of unsolicited documents, or the attempted transmission of a document to a residence telephone or for any errors in data or distribution information provided by Customer or any Customer User, (v) claims or actions of third parties arising from the Customer Content or Customer's or any Customer User's use of the Services, and (vi) infringement of any intellectual property rights of any third-party.
- EasyLink shall defend, indemnify and hold harmless Customer, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively, the "Customer Indemnitees") from and against any and all Losses which any Customer Indemnitees may suffer, incur or sustain resulting from or arising out of (i) any third-party claim or suit alleging that the Services infringe any U.S. patent, copyright or trade secret existing on the date of the Agreement or (ii) personal injury or death caused by EasyLink's intentional and willful misconduct; provided however that any such indemnification shall not apply to the extent that any Loss arises out of Customer's or Customer User's willful misconduct, negligence, failure to comply with any applicable laws, rules or regulations or breach of the Agreement. EasyLink shall have sole control of its defense and all negotiations for settlement in any matter subject to indemnification under this Section 7. Notwithstanding the foregoing, however, EasyLink will have no obligation to indemnify any Customer Indemnitee for misappropriation or infringement claims arising from or in connection with: (i) any unauthorized use of the Services by Customer or other persons or entities accessing the Services through Customer which results in violation, trespass, contravention or breach of any patent, copyright, trademark, license or other property or proprietary right of any third-party, or constitutes the unauthorized use or misappropriation of any trade secret of any third-party; (ii) modification of the Services by Customer without EasyLink's prior written consent; (iii) any use of the Services in combination with other products, equipment, or software that is neither supplied by EasyLink nor expressly authorized in writing by EasyLink for use by Customer; or (iv) the use of Services by Customer, or any other person or entity that accesses the Services through Customer for illegal or fraudulent purposes or in a manner that violates this Agreement; or (v) use of the Services with third-party products or services where third-party products or services, or Customer's content, contributes to or causes the infringement.
- In connection with any claim that may be subject to indemnification under this Section 7, the party seeking indemnification (the "Indemnified Party") shall provide the party providing indemnification (the "Indemnifying Party") written notice of such claim promptly after receipt of it, provided, however, that the failure of an Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations except to the extent that the defense of such claim is prejudiced thereby.
- If an injunction, decree or judgment is, or in EasyLink's sole discretion is likely to be, entered providing that Customer may not use the Services as contemplated in the Agreement, EasyLink may, at its sole option and expense, either (i) procure for Customer the right to use the Services or affected part thereof as provided in the Agreement; (ii) replace the Services or affected part thereof with other non-infringing services or modify the Services or affected part thereof so as to be non-infringing; or (iii) terminate the applicable Service Order upon written notice to Customer.
- EASYLINK'S DEFENSE AND INDEMNIFICATION OBLIGATIONS IN SECTION 7(b) STATE THE ENTIRE LIABILITY AND OBLIGATION OF EASYLINK, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES OR WILLFUL MISCONDUCT BY EASYLINK.
- Limitations on Liability .
- EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH IN A SERVICE ORDER, ALL SERVICES AND SOFTWARE PROVIDED UNDER THE AGREEMENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND EASYLINK MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND EASYLINK HEREBY EXPRESSLY DISCLAIMS THE SAME TO THE MAXIMUM EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. EASYLINK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. EASYLINK CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET.
- NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OR INTERRUPTION OF DATA OR COMPUTER TIME OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PATENT, TRADE SECRET OR COPYRIGHT INFRINGEMENT (EXCEPT TO THE EXTENT PROVIDED IN SECTION 7(b)), OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICE ORDER, OR (EXCEPT AS PROVIDED IN SECTION 8(d)) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD-PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES. EASYLINK WILL NOT BE LIABLE TO ANY PARTY, INCLUDING BUT NOT LIMITED TO CUSTOMER, FOR THE CONTENT OF INFORMATION TRANSMITTED BY CUSTOMER THROUGH THE SERVICES. EASYLINK WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEMS OR NETWORKS.
- NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, EASYLINK'S TOTAL LIABILITY ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT, THE SERVICES, ANY SOFTWARE PROVIDED BY EASYLINK, OR ANY SERVICE ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, SHALL NOT EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO EASYLINK DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR EVENTS GIVING RISE TO SUCH LIABILITY.
- THE LIMITATIONS CONTAINED IN SECTIONS 8(b) AND 8(c) APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), OTHER THAN CLAIMS BASED ON FRAUD OR INTENTIONAL AND WILLFUL MISCONDUCT. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS CONTAINED IN SECTIONS 8(b) AND (c) SHALL NOT APPLY TO LIABILITY ARISING ON ACCOUNT OF EASYLINK'S OR CUSTOMER'S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7 OR THE MINIMUM COMMITMENT OBLIGATIONS OF SECTIONS 2(d) and 2(h)(ii).
- ALL LIMITATIONS OF LIABILITY APPLICABLE TO EASYLINK CONTAINED IN THIS SECTION 8 SHALL ALSO BE APPLICABLE TO EASYLINK'S SUPPLIERS.
- WHERE LEGISLATION IMPLIES IN THIS AGREEMENT ANY CONDITION OR WARRANTY WHICH CANNOT BE LIMITED OR EXCLUDED, THAT CONDITION OR WARRANTY SHALL BE DEEMED TO BE INCLUDED IN THIS AGREEMENT AND THE LIABILITY OF EASYLINK FOR ANY BREACH OF SUCH CONDITION OR WARRANTY SHALL BE LIMITED, AT EASYLINK'S OPTION, TO THE SUPPLYING OF THE SERVICES AGAIN OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
The Agreement shall begin on the date a Service Order is executed by both EasyLink and Customer and shall continue until termination or expiration in accordance with the Agreement.
- International Provisions
- Scope of this Section. The provisions of this Section 10 apply to (i) any Customer that is organized under the laws of any jurisdiction outside of the United States (a "Non-U.S. Company"), any Customer that has a subsidiary that is a Non-U.S. Company, or any Customer that is controlling, controlled by or under common control with any Non-U.S. Company or any person who is not a U.S. citizen, (ii) any Customer that is receiving or utilizing any Services under the Agreement at a location outside the U.S., or (iii) any Customer that at any time pays EasyLink for any Services using funds originating outside the U.S.
- Compliance with OFAC Regulations. Customer represents and warrants that neither the Customer, not any of its subsidiaries, nor any Person controlling, controlled by or under common control with the Customer, is (i) on the list of Specially Designated Nationals and Blocked Persons maintained by the United States Department of the Treasury, Office of Foreign Asset Control (the "US-OFAC") (currently available at http://treas.gov/offices/enforcement/ofac/sdn/index.shtml) or (ii) is subject to any sanctions programs currently managed by US-OFAC (collectively, the "OFAC Sanctions"). Customer agrees promptly to notify EasyLink in writing if the foregoing representation should ever cease to be true. Customer further agrees to make no payment to EasyLink if such payment would be prohibited by any OFAC Sanctions.
- Independent Contractor. EasyLink and Customer are independent contractors of each other. The parties have not created the relationship of principal and agent, employer and employee, master and servant, partners, or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
Governing Law; Jurisdiction. Any controversy or claim arising out of, or relating to, or in connection with the Agreement or the relationship of the parties, the formation of the Agreement or the breach of the Agreement, including any claim based upon or arising from an alleged tort, shall be governed by the substantive laws of the State of New South Wales (without regard to its rules governing conflicts of law). The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement. Except for injunctive relief required by a party to protect its intellectual property, any dispute or difference whatsoever arising between the parties out of or relating to the construction, meaning, scope, operation or effect of this Agreement or the validity or the breach thereof, the parties to this Agreement shall attempt in the first instance to resolve such dispute through friendly consultation or mediation. If the dispute cannot be resolved in the above manner within thirty (30) days after one party has issued a written notice to the other party to commence consultations, the parties agree to refer their dispute to Arbitration administered by the Australian Commercial Disputes Centre (ACDC). The Arbitration shall be conducted in Sydney, New South Wales in accordance with the ACDC Rules for Arbitration which are operating at the time the dispute is referred to ACDC and which terms are hereby deemed incorporated into this Agreement. This clause shall survive termination of this Agreement.
FOR ALL OTHER, CLAIMS, SUITS, ACTIONS OR PROCEEDINGS ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH THE AGREEMENT EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW SOUTH WALES (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. Customer may bring claims against EasyLink only in Customer's individual capacity and not as a plaintiff or class member in any purported class action or representative proceeding.
- Headings. The headings herein are for convenience only and are not part of these MTCs.
- Entire Agreement; Amendments. The Agreement (including these MTCs and any applicable Instruments) supersede all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and the Agreement (including these MTCs and any applicable Instruments) together constitute the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any other documents, discussions, negotiations, agreements or communications, this Agreement shall override and control, provided however that in case of a conflict between any Service Order and these MTCs, such Service Order shall control. No additional terms or conditions relating to the subject matter of the Agreement shall be effective unless approved in writing by any authorized representative of Customer and EasyLink. Except as otherwise provided in this Section 10(d), the Agreement may not be modified or amended, orally or otherwise, except by a subsequent agreement in writing executed by the parties hereto. For the avoidance of doubt, if Customer requires use of Customer's form purchase order or similar document in connection with any of the Services to be performed hereunder, Customer hereby acknowledges and agrees that to the extent such purchase order or similar document contains any pre-printed or other terms and conditions, such terms and conditions, whether in addition to or in conflict with the Agreement, shall have no effect whatsoever and the Agreement shall govern the relationship between EasyLink and Customer. Notwithstanding the foregoing, and without limiting any other rights in the Agreement, EasyLink may amend its Acceptable Use Policy, at EasyLink's election, by: (i) posting a revised Acceptable Use Policy on its website or a successor website as determined by EasyLink (the "EasyLink Website"); (ii) delivering the amended Acceptable Use Policy Customer in accordance with the notice provisions provided herein (such delivery may be included in invoices for the Services delivered to Customer); or (iii) by other reasonable means as permitted by applicable law. An amended Acceptable Use Policy shall automatically be effective upon the earlier of: (i) the date indicated on the EasyLink Website or (ii) Customer's next billing cycle following posting or delivery to Customer. CUSTOMER AGREES TO BE SOLELY RESPONSIBLE FOR REGULARLY REVIEWING THE EASYLINK WEBSITE TO OBTAIN TIMELY NOTICE OF ANY SUCH CHANGES TO EASYLINK'S THEN-CURRENT ACCEPTABLE USE POLICY. BY USING THE SERVICES AFTER POSTING OR DELIVERY OF AMENDED ACCEPTABLE USE POLICY, CUSTOMER WILL BE DEEMED TO HAVE ACCEPTED AND BE BOUND BY SUCH AMENDED ACCEPTABLE USE POLICY. No such amendment by EasyLink shall serve to constitute a default or termination by EasyLink of any Service Order or the Agreement, nor shall such amendment serve to be a basis for Customer's termination of any Service Order or the Agreement.
- Severability. All rights and restrictions contained in the Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary such that they will not render the Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of the Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
- Notices. Any notices or demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given (i) upon date of delivery if delivered in person or by an overnight nationally-recognized delivery service (such as FedEx or UPS) or postal service, (ii) upon receipt if delivered by facsimile to the fax number set forth in the Service Order, the receipt of which is confirmed by the recipient, or (iii) upon the expiration of three (3) days after the date of posting if mailed by certified mail, postage prepaid, to the address set forth in the Service Order. EasyLink may change its address or facsimile number for purposes of the Agreement by notice in writing to Customer as provided herein, and Customer may change its address or facsimile number for purposes of the Agreement by notice in writing to EasyLink as provided in the Service Order. EasyLink may give written notice to Customer via e-mail to the Customer's e-mail address as maintained in EasyLink's billing records.
- Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of the Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
- Assignment; Successors. Customer may not assign or transfer the Agreement or any of its rights or obligations hereunder, without the prior written consent of EasyLink. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. EasyLink may assign its rights and obligations under the Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. The Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two (2) years after the cause of action has arisen.
- Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under the Agreement (other than Customer's failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation: fire, flood, earthquake, lightning strike, hurricane, tornado, typhoon, tsunami, act of God, national emergency, act of civil or military authority, labor disputes, labor strike, work stoppage, embargo, acts of war, act of terrorism, insurrection, riot, sabotage, interruptions of transportation or communications, supply shortages, failure of the Internet, failure of the local loop of the local exchange carrier, vandalism or "hacker" attack, power brownout or blackout, any law, order, regulation or other action of any regulatory authority, or the failure of any third-party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
- No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, to grant, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns.
- Export Control. Customer shall not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with the Agreement without first complying with any applicable export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.
- Marketing. Customer agrees that during the term of this Agreement EasyLink may publicly refer to Customer, orally and in writing, as a customer of EasyLink. Any other public reference to Customer by EasyLink requires the written consent of Customer.
- Telephone Monitoring. To ensure EasyLink's customers receive quality service, EasyLink may monitor and record phone calls between EasyLink customers, including Customer, and EasyLink's customer service and technical support personnel.
- Publicity. EasyLink may issue a joint press release shortly after execution of the Agreement, provided that the release is first approved by Customer, such approval not to be unreasonably withheld. In addition, Customer agrees that EasyLink may include Customer's company name in one or more lists of customers that EasyLink distributes or makes available.
- Survival. These MTCs shall be valid as to any obligation incurred prior to termination of any Service Order. All Sections of these MTCs (including without limitation Sections 2(d), 2(e), 2(h), 3, 4, 5, 6, 7, 8 and 10) that can only be given proper effect if they survive the termination of any Service Order or the Agreement, shall survive the termination of such Service Order or the Agreement.