This End User License Agreement (“Agreement”) sets forth the terms of and governs the relationship between Geoverse, LLC, a Delaware limited liability company (“Geoverse”) and the entity which is a party to the Order Form as further described herein (“Enterprise Customer”).  Geoverse and Enterprise Customer are collectively referred to herein as the “Parties,” and each individually a “Party”.

 

WHEREAS, Enterprise Customer desires to purchase Services from Geoverse pursuant to an Order Form and subject to the terms and conditions of this Agreement; and

 

WHEREAS, Geoverse desires to sell Services to Enterprise Customer.

 

NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

 

1.      TERM OF THE AGREEMENT

 

1.1.   This Agreement will continue in effect until the earlier of: (a) termination of the agreement between Geoverse and the Value Added Reseller described on Enterprise Customer’s Order Form and (b) termination or expiration of all active orders under this Agreement.

 

2.      SERVICES

 

2.1.   Geoverse shall provide services to Enterprise Customer, as those services are defined or identified on Enterprise Customer’s Order Form (collectively, “Services”).  The start date of the Services (“Start Date”) shall be specified in the Order Form.  

 

3.      ORDERING

 

3.1.   Services will be ordered consistent with the applicable Geoverse Order Form as signed by Enterprise Customer (“Order Form”). Geoverse shall not be obligated to process an order or provide any Services to Enterprise Customer that are not requested and accepted in strict compliance with the procedures required in the Order Form.  

 

4.      MAINTENANCE AND REPAIR

 

4.1.   Geoverse reserves the right to modify its network, system configurations or routing configurations.  Geoverse may, at its sole discretion and without liability, change or modify the features and functionalities of the Services or modify or replace any hardware or software in the network or in equipment used to deliver any Service provided that this does not have a material adverse effect on the Services to be delivered.  Except for equipment explicitly purchased by Enterprise Customer in the Order Form, it is expressly acknowledged and understood that all right, title and interest in and to any and all products, hardware, software and other material provided by Geoverse in connection with the Services (collectively, “Equipment”) shall at all times remain vested in Geoverse. Upon any termination or expiration of this Agreement, Geoverse shall have the option of either (i) taking custody of the Equipment, or (ii) allowing Enterprise Customer to purchase such Equipment at its then current fair market value.

 

4.2.   Geoverse may from time to time perform routine network maintenance (“Routine Network Maintenance”) for network improvements and preventive maintenance.  At Enterprise Customer’s request, additional maintenance services may be provided by Geoverse, subject to an additional charge.

 

4.3.   Geoverse will perform non-regularly scheduled maintenance that may be required to address a serious degradation or loss of Service to Enterprise Customer or to protect Geoverse’s network from immediate material harm (“Emergency Maintenance”).  Geoverse will provide notice to Enterprise Customer of Emergency Maintenance as soon as is commercially practicable. 

 

4.4.   When Enterprise Customer believes that a Service Failure has occurred, Enterprise Customer may contact Geoverse, in accordance with Enterprise Customer’s Order Form, to open an investigation of the cause of the Service Failure.  If there is a Service Failure, Geoverse and Enterprise Customer will cooperate to restore Service.  If any Service Failure is caused by a factor outside the control of Geoverse, Geoverse will cooperate with Enterprise Customer to conduct testing and repair activities at Enterprise Customer’s cost.

 

4.5.   Except as otherwise provided in this Agreement, a “Service Failure” means failure to meet the service level agreements set forth in Appendix A.

 

4.6.   In the event any Service Failure is the result of Enterprise Customer’s equipment or facilities or is due to Enterprise Customer’s acts or omissions or if Geoverse’s investigation results in a “No Trouble Found,” Geoverse may charge Enterprise Customer at its standard rates for the time and expense incurred by Geoverse in connection with investigating and resolving the issue.

 

5.      BILLING AND PAYMENT

 

5.1.   Enterprise Customer shall pay Geoverse for the Services at the rates and charges set forth in Enterprise Customer’s Order Form (collectively “Rates”).  Enterprise Customer will be charged the Rates for the Services as of the Start Date, and for monthly charges Geoverse will invoice Enterprise Customer on or about the fifth (5th) business day after the close of each billing cycle (“Invoice”).  

 

5.2.   Each Invoice shall be paid by Enterprise Customer so that the payment is received by Geoverse no later than thirty (30) calendar days after the Invoice date (the “Due Date”).  In the event any payment is not received by the Due Date, Geoverse may, in its sole discretion, (i) apply a late charge equal to 1-1/2% (or the maximum legal rate, if less) per month on the unpaid balance (“Late Payment Charge”); (ii) require Enterprise Customer to provide a security deposit or other form of security to guarantee the payment for the Services; and (iii) take any action in connection with any other right or remedy Geoverse has under this Agreement, at law or in equity.  Any restrictive endorsements (such as “paid in full”), releases or other statements on or accompanying checks or other payments accepted by Geoverse shall have no legal effect.

 

6.      BILLING DISPUTES 

 

6.1.   If Enterprise Customer in good faith disputes any portion of an Invoice, Enterprise Customer shall submit to Geoverse, within thirty (30) days of the date of Invoice, full payment of the undisputed portion of the Invoice and written notice and documentation identifying and substantiating the disputed amount (“Dispute”).  If Enterprise Customer does not report a Dispute within thirty (30) days of the date of Invoice, Enterprise Customer shall have waived its right to dispute that Invoice.  

 

6.2.   Geoverse will use commercially reasonable efforts to resolve Disputes within (30) business days after its receipt of the Dispute notice. If a Dispute is not resolved within the thirty (30) business day period or if Geoverse’s resolution is not acceptable to Enterprise Customer, Enterprise Customer may utilize the Conflict Resolution process specified in Section 20.

 

6.3.   Any disputed amounts resolved in favor of Enterprise Customer shall be credited to Enterprise Customer on the next Invoice following resolution of the Dispute. Any disputed amounts determined to be payable to Geoverse shall be due within ten (10) days of the resolution of the Dispute and shall be subject to a Late Payment Charge until paid.

 

7.      TAXES AND ASSESSMENTS

 

7.1.   The Rates do not include governmental taxes, assessments, surcharges, and other fees relating to the sale of the Services to Enterprise Customer (collectively, “Taxes”).  Enterprise Customer will be responsible, as required under applicable law, for identifying and paying all Taxes (and any penalties, interest, and other additions thereto) that are imposed on Enterprise Customer in connection with the transactions and payments under this Agreement.  

 

7.2.   Enterprise Customer may provide Geoverse with an exemption certificate or equivalent information acceptable to the relevant taxing authority, in which case, Geoverse will not charge or collect the Taxes covered by such certificate.  Throughout the term of this Agreement, Enterprise Customer will provide Geoverse with any forms, documents, or certifications as may be required for Geoverse to satisfy any information reporting or withholding tax obligations with respect to any payments under this Agreement.  Enterprise Customer is responsible for properly charging Taxes to its end users and for the proper and timely reporting and payment of such Taxes to the taxing authorities. Enterprise Customer agrees to defend, indemnify and hold harmless Geoverse from Enterprise Customer’s non-payment or failure to report any and all taxes related to Services provided to Enterprise Customer under this Agreement.

 

8.      WARRANTIES AND LIMITATION OF LIABILITY

 

8.1.   Enterprise Customer represents and warrants to Geoverse on behalf of itself and its end users (if any) that it will comply with all warranties set forth in any Order Form issued under this Agreement.

 

8.2.   Each Party represents and warrants to, and covenants with, the other Party that (a) it is duly incorporated, validly existing, and in good standing as a company under the laws of the jurisdiction of its formation; (b) it has fully authority to execute and perform this Agreement; and (c) it is not under obligation, contractual or otherwise, to any other entity that might conflict, interfere or be inconsistent with any of the provisions of this Agreement.

 

8.3.   GEOVERSE MAKES NO WARRANTIES OR GUARANTEES RELATING TO THE SERVICES PROVIDED HEREUNDER OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY PARTICULAR WARRANTIES OF (i) MERCHANTABILITY, (ii) FITNESS FOR A PARTICULAR PURPOSE (iii) EFFORT TO ACHIEVE PURPOSE, (iv) COMPLETENESS OR (v) QUALITY, ACCURACY, OR CURRENCY OF THIRD PARTY CONTENT, OR AS TO ANY MATTER, ALL OF WHICH WARRANTIES BY GEOVERSE ARE HEREBY EXCLUDED AND DISCLAIMED.  ENTERPRISE CUSTOMER AGREES THAT ANY EFFORT BY GEOVERSE TO MODIFY THE SERVICES OR ANY EQUIPMENT SHALL NOT BE DEEMED A WAIVER OF ANY LIMITATIONS CONTAINED IN THIS SECTION AND THAT GEOVERSE’S LIMITATION OF WARRANTIES SHALL NOT BE DEEMED TO HAVE FAILED IIN THEIR ESSENTIAL PURPOSE.  ENTERPRISE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY ARISING FROM THE PERFORMANCE OF THE SERVICES OR ANY SERVICE FAILURE IS TO RECEIVE, AND GEOVERSE’S ENTIRE LIABILITY SHALL BE LIMITED TO PROVIDING, A RESOLUTION TO THE SERVICE FAILURE AS FURTHER DESCRIBED IN APPENDIX A.

 

8.4.   Geoverse’s liability arising out the provision of Services, resulting from delays in the restoration of Services, or arising out of mistakes, accidents, omissions, interruptions, errors or defects in transmission, or delays caused by judicial or regulatory authorities, shall be subject to the limitations described in Section 8.3 and as further described below.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT SHALL GEOVERSE, ITS OFFICERS, AGENTS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, ANY PERSON OR ENTITY ASSISTING GEOVERSE OR ITS SUBSIDIAIRES OR AFFILIATES BE LIABLE TO ENTERPRISE CUSTOMER OR ANY OTHER THIRD PARTY WITH RESPECT TO THE SUBJECT MATTER OF AND ITS OBLIGATIONS HEREUNDER UNDER ANY CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY FOR ANY TYPE OF INDIRECT, CONSEQUENTIAL, RELIANCE, INCEDENTAL, ACTUAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS, LOST REVENUES, LOST OPPORTUNITIES, LOST ROYALTIES, LOST DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,  OR LOST SAVINGS OF ANY KIND, ARISING OUT OF OR RELATING TO THE SERVICES OR THE OBLIGATIONS OF GEOVERSE HEREUNDER, WHETHER OR NOT EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. UNDER NO CIRCUMSTANCES WILL GEOVERSE, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, EMPLOYEES, ANY PERSON OR ENTITY ASSISTING GEOVERSE SUSIDIARIES OR AFFILIATES BE LIABLE TO ENTERPRISE CUSTOMER FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS GEOVERSE HAS COLLECTED FROM ENTERPRISE CUSTOMER WITHIN THE SIX (6) MONTHS IMMEDIATELY PRECEDING ANY CLAIM WITH RESPECT TO THE SERVICES DELIVERED HEREUNDER. ENTERPRISE CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL ITS ESSENTIAL PURPOSE. ENTERPRISE CUSTOMER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR ENTERPRISE CUSTOMER’S USE AND ITS END USERS’ USE OF THE SERVICES, SOFTWARE, OR EQUIPMENT PROVIDED BY GEOVERSE, IF ANY, GEOVERSE HAS NO CONTROL OVER AND ACCEPTS NO LIABILITY OR RESPONSIBILITY WHATSOEVER FOR SUCH USE, AND ENTERPRISE CUSTOMER AND ENTERPRISE CUSTOMER’S END USER USERS ACCESS THE SERVICE AT THEIR OWN RISK.

 

9.      INDEMNIFICATION

 

9.1.   Enterprise Customer will defend, indemnify and hold harmless Geoverse, its affiliates and their respective directors, officers, employees, successors, assigns and agents (each, an “Indemnified Party”) from and against any and all claims, losses, liabilities, damages, settlements, costs and expenses (including, without limitation, reasonable attorneys’ fees) and any other liability to the extent arising out of or relating to any claim, action or proceeding brought by any third party based upon:  (a) any breach by Enterprise Customer of any warranties or representations made in the Agreement including compliance with Geoverse’s Acceptable Use Policy; (b) Enterprise Customer’s negligence or willful misconduct in the performance under this Agreement that results in any bodily injury (including illness or death) or property damage; (c) any breach by the Enterprise Customer of its confidentiality obligations under this Agreement and (d) any claims of infringement or misappropriation of any patent, trade secret, copyright, or other intellectual property rights, or moral rights related thereto, based upon or related to Enterprise Customer’s improper use of the Services. 

 

9.2.   For each claim or action for which the Indemnified Party seeks indemnification pursuant to this Section, the Indemnified Party shall provide Enterprise Customer prompt written notice of such claim or action.

 

9.3.   Enterprise Customer will use counsel reasonably satisfactory to the Indemnified Party to defend each indemnified claim, and the Indemnified Party will cooperate (at the Enterprise Customer’s expense) with the Enterprise Customer in the defense.  Enterprise Customer will not consent to the entry of any judgment or enter into any settlement without the Indemnified Party’s prior written consent, which consent will not be unreasonably withheld.  

 

9.4.   Enterprise Customer’s obligation to defend under this Agreement is independent of its obligation to indemnify under this Section.  Each Party’s obligations under this Section are independent of any other obligation of such Party under this Agreement.

 

 

10.    CONFIDENTIAL INFORMATION; ENTERPRISE CUSTOMER PROPRIETARY NETWORK INFORMATION

 

10.1. As used in this Agreement, “Confidential Information” shall mean all nonpublic information disclosed by either Party (“Disclosing Party”) to the other Party (the “Receiving Party”) that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information does not include any information that: (a) is or becomes publicly available without breach of this Agreement; (b) can be shown by documentation to have been known to the Receiving Party at the time of its receipt from the Disclosing Party; (c) is received from a third party without a duty of confidentiality; or (d) can be shown by documentation to have been independently developed by the Receiving Party without reference to any Confidential Information provided by the Disclosing Party.

 

10.2. The Receiving Party may use Confidential Information only to exercise its rights and perform its obligations under this Agreement.  Except as expressly provided for in this Agreement, the Receiving Party will not disclose Confidential Information to anyone without the Disclosing Party’s prior written consent.  The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature.  Additionally, the Receiving Party will restrict the possession, knowledge and use of Confidential Information to its affiliates and its and their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, brokers, consultants and financial advisors) (collectively, “Representatives”) who have a need to know Confidential Information in exercising its rights or performing its obligations under this Agreement.  The Disclosing Party shall be responsible for any failure by any of its Representatives to comply with and abide by such Disclosing Party’s confidentiality obligations under this Agreement.

 

10.3. The Receiving Party may disclose Confidential Information as required by law; provided, however, that the Receiving Party shall (a) when permitted by law, give the Disclosing Party prompt written notice of a disclosure requirement to allow the Disclosing Party to seek a protective order or other appropriate remedy, (b) take reasonable actions and provide reasonable assistance to the Disclosing Party to secure confidential treatment of the Confidential Information at the cost of the Disclosing Party, and (c) disclose only such Confidential Information as is required by law.

 

10.4. Enterprise Customer Proprietary Network Information (“CPNI”). Both Geoverse and Enterprise Customer acknowledge that rules and regulations apply to CPNI that require specific safeguards to protect against the unauthorized disclosure of CPNI. CPNI refers to information that relates to the quantity, technical configuration, type, destination, location, amount of use and billing data of a telecommunications or interconnected VoIP service that is made available to a party solely by virtue of a customer relationship. CPNI does not, however, include subscriber list information, which is information identifying the name, address and phone number of a customer that is published, caused to be published or accepted for publication in a directory.  Both Geoverse and Enterprise Customer warrant that they will implement required safeguards and otherwise abide by the rules and regulations that apply to CPNI with regard to any services provided to an end user facilitated by access to Geoverse’s services. Geoverse will only use CPNI for the purpose of providing the Services and will not disclose CPNI to third parties unless disclosure is required to provide any Services or services incorporating the Services, as otherwise described in this Agreement, or as otherwise permitted or required by law.

 

Enterprise Customer acknowledges and agrees that CPNI and other information collected by Geoverse may be aggregated or otherwise de-identified for business and marketing uses by Geoverse or by third parties. For example, aggregated or de-identified data may be used to improve Geoverse’s services, measure and analyze the use of Services and to help make Services and advertising more relevant to Enterprise Customer and its end users, if any.  Enterprise Customer may opt out of certain of these uses by emailing optout@geoverse.io or contacting Geoverse by phone. Enterprise Customer warrants that it shall obtain an acknowledgement of Geoverse’s permitted use hereunder from any end users to whom Services are made available.

 

11.    FORCE MAJEURE EVENT

 

11.1. Neither Party shall be held in default under, or in noncompliance with, the provisions of this Agreement (except for an obligation to pay fees) where such default or noncompliance was caused by a “Force Majeure Event.”  A Force Majeure Event means an event or circumstance beyond the reasonable control of a Party that could not have been avoided or corrected through such Party’s exercise of reasonable diligence, including, but not limited to, severe or unusual weather conditions, strikes, labor disturbances and disputes, war and other military conflicts, insurrection, riots, incidences of terrorism, acts of vandalism, actions or inactions of any government instrumentality, fire, flood, or other acts of God. 

 

11.2. If a Party is prevented from fulfilling its contractual obligations due to a Force Majeure Event (“Affected Party”), the Affected Party must promptly notify the other Party in writing of the Force Majeure Event, giving details of the Force Majeure Event circumstances, its anticipated effect upon the Affected Party’s performance under this Agreement and the steps that the Affected Party is taking to remedy the delay.  Upon providing such notice, the obligations of the Affected Party will be suspended to the extent caused by the Force Majeure Event so long as the Force Majeure Event continues, provided that the Affected Party undertakes all necessary and reasonable actions within its control in order to limit the extent of the consequences caused by the Force Majeure Event.  

 

12.    TERMINATION RIGHTS

 

12.1. Without affecting any amounts due to Geoverse, Geoverse may terminate this Agreement or an Order Form for Enterprise Customer’s failure to pay when required any Invoice not properly and timely disputed under this Agreement, or to maintain any other assurance of payment that may be required hereunder, within thirty (30) business days following Enterprise Customer's payment due date.

 

12.2. Without affecting any amounts due to Geoverse, either Party may immediately terminate this Agreement or an Order Form upon the other Party's insolvency, dissolution or cessation of business operations.

 

12.3. In the event of a breach of any material term or condition of this Agreement by a Party (other than a failure to pay, which is covered under Section 12.1), the other Party may terminate this Agreement or an Order Form upon thirty (30) days written notice, unless the breaching Party cures the breach during the thirty (30) day period. Upon any breach by Enterprise Customer not cured within this thirty (30) day period, Geoverse may at its sole option do any or all of the following: (a) cease accepting or processing orders for Services and suspend Services; (b) cease providing any information or reports being supplied for use by Enterprise Customer; (c) immediately terminate this Agreement and Service without liability to Enterprise Customer; (d) collect an Early Termination Fee from Enterprise Customer; and (e) pursue such other legal or equitable remedies or relief as may be appropriate.

 

12.4. If at any time during the Term Enterprise Customer terminates the Service, other than pursuant to Section 12.2, Enterprise Customer shall be liable for an Early Termination Fee equal to the sum of: (a) all unpaid Rates for the Service actually provided prior to such termination; and (b) the monthly recurring charges for each month remaining in the Term, as further described in the Order Form.  

 

13.    LIMITATION OF ACTION; UNLAWFUL USE OF SERVICES

 

13.1. Enterprise Customer shall be barred from all legal and equitable remedies, including without limitation, injunctive relief, that would require Geoverse to continue providing Services to Enterprise Customer while any delinquent amounts not properly the subject of a Dispute remain unpaid.

 

13.2. Geoverse is not responsible for, and Enterprise Customer shall defend and indemnify Geoverse against any and all fraudulent or otherwise unlawful use of the Services by Enterprise Customer or its end users.  Any claims of fraud or other unlawful use shall not constitute valid justification for dispute of an Invoice. Enterprise Customer is solely responsible for all usage of the Services, allegedly fraudulent or otherwise, and for all additional charges as may be associated with such usage.

 

14.    RELATIONSHIP OF THE PARTIES

 

The Parties acknowledge and agree that nothing in this Agreement is to be construed to constitute the Parties as employer/employee, partners, franchisor/franchisee, or otherwise as participants in a joint or common undertaking. Neither Party, nor their respective employees, agents or representatives, has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other Party.

 

15.    WAIVERS

 

Failure of either Party to enforce or insist upon compliance with the provisions of this Agreement, or waive compliance with any provisions of this Agreement in any instance, shall not be construed as a general or continuing waiver or relinquishment of any provision or right of this Agreement.

 

16.    ASSIGNMENT

 

Neither Party may assign or transfer this Agreement without the other Party’s written consent, which consent shall not be unreasonably withheld, except that Geoverse may, without notice, assign its duties or obligations under this Agreement to its parent, successor in interest, an affiliate, or a subsidiary without the other Party’s consent.  Any assignment or transfer without the required consent as provided herein is void.

 

17.    INTEGRATION

 

This Agreement, Enterprise Customer’s Order Form and all Annexes and other attachments hereto, represent the entire agreement between the Parties with respect to the subject matter hereof and supersede and merge all prior agreements, promises, understandings, statements, representations, warranties, indemnities and inducements to the making of this Agreement relied upon by either Party, whether written or oral.

 

18.    CONSTRUCTION

 

The language used in this Agreement is deemed the language chosen by the Parties to express their mutual intent. No rule of strict construction shall be applied against either Party.

 

19.    AMENDMENT

 

Except as may be expressly provided otherwise herein, this Agreement may not be amended or modified, in whole or in part, except by the Parties in writing.

 

20.    GOVERNING LAW; CONFLICT RESOLUTION

 

20.1. This Agreement shall, in all respects, be governed by and enforced in accordance with the laws of the State of New York, without regard to its choice of law provisions.

 

20.2. The provisions of this Section shall be the sole and exclusive method and procedure to resolve any Conflicts.  “Conflicts” shall include, without limitation, all disputes about billing, questions of interpretation, all claims for damages, adjustments, credits and/or set offs, all questions or issues regarding the validity and enforceability of the Agreement, all questions regarding whether any particular act, omission, matter or event constitutes, or would constitute if remaining uncured following the expiration of any applicable cure period hereunder, a default and any and every other controversy arising between the Parties related to this Agreement.  Neither Party may file a lawsuit for interpretation or enforcement of its rights under the Agreement except as may be authorized under the provisions of this Section.  

 

20.3. The Parties shall attempt in good faith to resolve any Conflict by negotiations between individual representatives who have authority to settle that Conflict.  Either Party may give the other Party written notice of any Conflict together with a request that the parties meet and confer (“Notice of Conflict”).  Within ten (10) days after delivery of the Notice of Conflict, individual representatives of both parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to exchange relevant information and to attempt to resolve the Conflict.  If the matter has not been resolved within thirty (30) days after delivery of the Notice of Conflict, or if the Parties fail to meet within ten (10) days after delivery of the Notice of Conflict, either Party may initiate litigation under Section 20.4.  If a negotiating representative intends to be accompanied at a meeting by an attorney, the other negotiating representative shall be given at least two (2) working days’ notice of such intention and may also be accompanied by an attorney.  All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and the applicable Rules of Evidence.  

 

20.4. IF A CONFLICT HAS NOT BEEN RESOLVED BY NEGOTIATION AS PROVIDED IN SECTION 20.3, EITHER PARTY MAY INITIATE an action in the supreme court of the state of new york, new york county and/or, if applicable, the united states district court for the southern district of new york, new york county, AND THE PARTIES EACH ACCEPT THE EXCLUSIVE JURISDICTION OF SUCH COURTS.  

 

20.5. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedure specified in Section 20.2 and Section 20.3 are pending.  The Parties will take such action, if any, required to effectuate such tolling.  

 

20.6. Each Party is required to continue to perform its obligations under the Agreement pending the final resolution of any Conflict covered by this section.  

 

20.7. All deadlines specified in this section may be extended by mutual agreement in writing.

 

 

21.    NOTICES

 

All notices, including but not limited to, demands, requests and other communications required or permitted hereunder (not including Invoices) shall be in writing, shall be executed by the Party sending such Notice, and shall be deemed to be delivered when actually received, whether upon personal delivery or delivery by common carrier. All notices given by mail or other means of delivery shall be sent by first class mail, duly addressed and with proper postage, to the following address, or such other address as each of the Parties hereto may notify the other: 

 

If to Geoverse: 

 

Geoverse, LLC 

13920 SE Eastgate Way 

Suite 115

Bellevue, WA 98005

Attention: Legal Department

Email: legal@geoverse.io

 

with a copy to: 

 

Geoverse, LLC

c/o ATN International, Inc.

500 Cummings Center

Suite 2450

Beverly, MA 01915

Attention: General Counsel

Email: legalnotices@atni.com

 

If to Enterprise Customer:

 

To the contact details provided in Enterprise Customer’s Order Form.                                 

 

22.    PUBLICITY

 

Geoverse may (a) prepare press releases with respect to this Agreement, which will be submitted after approval by Enterprise Customer (such approval not to be unreasonably withheld or delayed); (b) disclose to third parties that Enterprise Customer is a Geoverse customer; and (c) use the name of and identify Enterprise Customer as a customer in advertising materials.

 

23.    COUNTERPARTS

 

This Agreement may be executed in several counterparts, each of which shall constitute an original, but all of which shall constitute one and the same instrument.

 

24.    SURVIVAL OF PROVISIONS

 

The terms and provisions contained in this Agreement that by their sense and context are intended to survive the performance thereof by the Parties shall survive the completion of performance and termination of this Agreement, including, without limitation, indemnification requirements and the making of any and all payments hereunder.

 

25.    UNENFORCEABLE PROVISIONS

 

The illegality or unenforceability of any provision of this Agreement does not affect the legality of enforceability of any other provision or portion. If any provision or portion of this Agreement is deemed illegal or unenforceable for any reason, there shall be deemed to be made such minimum change in such provision or portion as is necessary to make it valid and enforceable as so modified. 

     

APPENDIX A

 

1.     SERVICE LEVEL AGREEMENTS (“SLAs”)

 

1.1.  The Geoverse Network is designed for 99.9% availability.  In the event of a shortfall in System Uptime affecting the Service, Geoverse will notify Enterprise Customer of such event by contacting Enterprise Customer’s designated point of contact by a method elected by Geoverse (telephone, email or SMS message).  Geoverse will use commercially reasonable efforts to remedy any shortfall in System Uptime in accordance with the following timescales:

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1.2.  General Terms and Exclusions Applying To SLAs

 

SLA coverage is limited to Geoverse Network elements under the control of Geoverse.  Once Enterprise Customer Internet traffic leaves the Geoverse Network, whether via a peering connection or otherwise, it is no longer covered by the terms of the applicable SLA.

 

SLAs shall not apply to the failure of the Service to comply with an SLA, or to any negative impact to System Uptime, caused, in whole or part, by any of the following:

 

a failure of Enterprise Customer’s premises equipment or equipment of Enterprise Customer’s vendor;

power failure at Enterprise Customer’s premises;

a failure in local access facilities connecting Enterprise Customer to the Geoverse Network;

Force Majeure events;

any act or omission of Enterprise Customer or any third party (including but not limited to, Enterprise Customer’s agents, contractors or vendors), including, but not limited to (i) failing to provide Geoverse adequate access to facilities for testing, (ii) failing to provide access to Enterprise Customer premises as reasonably required by Geoverse (or its agents) to enable Geoverse to comply with its obligations regarding the Service, (iii) failing to take any remedial action in relation to a Service as recommended by Geoverse, or otherwise preventing Geoverse from doing so, or (iv) any act or omission which causes Geoverse to be unable to meet any of the SLAs;

Enterprise Customer’s negligence or willful misconduct, which may include Enterprise Customer’s failure to follow agreed-upon procedures;

over delivery of traffic to individual IP Transit ports which attempts to exceed the overall bandwidth available for the applicable port;

any scheduled maintenance periods when Enterprise Customer has been informed of such maintenance, and emergency maintenance; or

disconnection or suspension of the Service by Geoverse pursuant to a right to do so under this Agreement.

 

1.3.  Definitions applicable to SLAs:

 

Geoverse Network means the telecommunications or data network and network components owned, operated or controlled by Geoverse, including Geoverse’s fiber backbone, any equipment connected to such fiber, and the software, data and know-how used by Geoverse to provide the Service.  Where Geoverse provides Service to a building through its own facilities, the Geoverse Network includes those facilities.  

 

System Uptime means the number of minutes that Geoverse Network is available to Enterprise Customer.  System Uptime excludes time for network maintenance, or any unavailability resulting from: (a) problems with or maintenance on Enterprise Customer’s backhaul, applications, equipment, premises or facilities; (b) acts or omissions of Enterprise Customer or an authorized user; (c) unavailability caused by companies other than Geoverse, except Geoverse-ordered third-party local loops; or (d) a Force Majeure Event.