NETWORK AS A SERVICE AGREEMENT
GENERAL TERMS AND CONDITIONS
These Network as a Service Agreement General Terms and Conditions (these “General Terms”) form a part of and govern the Network as a Service Agreement Statement of Work (“SOW” and together with these General Terms, this “Agreement”) entered into by Customer and Geoverse, LLC (“Geoverse”). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the SOW. To the extent there is a conflict between these General Terms and the SOW, these General Terms shall govern. Geoverse and Customer are collectively referred to herein as the “Parties,” and each individually a “Party”. Any amendment, waiver or other alteration of these General Terms shall be effective only mutual written agreement of both Parties.
1.1. Geoverse shall provide services to Customer, as those services are defined or identified in the SOW (collectively, “Services”). The applicable Service rates and charges are set forth in the SOW.
1.2. Customer is solely responsible for all billing, collection and customer service activities for its Enterprise Customer(s) (as defined in the SOW). Customer acknowledges and affirms that Customer’s financial obligations to Geoverse regarding Services provided must be satisfied in full whether or not Customer has billed or collected payment from its Enterprise Customer(s).
2. INTEGRATION AND TESTING
2.1. Geoverse shall use commercially reasonable efforts to integrate the Geoverse Network with Customer’s Radio Access Network (“RAN”) by the target activation date specified in the SOW. Customer shall work with Geoverse or Geoverse’s subcontractors to integrate Customer’s RAN to Geoverse’s Network. The period for testing integration shall commence on the date that Geoverse notifies Customer that the Service is ready to be tested, whether or not any associated Customer or third-party equipment, software or services are installed or ready for use that may be necessary for Customer to use or test the Service. Geoverse’s recommended procedures for testing are available on the Geoverse web site located here: https://www.geoverse.io/docs/naas/test
2.2. Customer shall be deemed to have accepted the applicable Service as of the earlier to occur of (i) the day following notification from Geoverse that Geoverse is ready to deliver the Service or (ii) the date Customer makes commercial use of the Service (the “Acceptance Date”). Notwithstanding the foregoing, the Acceptance Date shall be deemed to have occurred on the thirtieth (30th) day after Customer’s receipt of Geoverse SIM cards or if, by the thirtieth (30th) day following notification from Geoverse to Customer that the Service is ready to be tested, Customer has failed to respond to such notice and, through no fault of Geoverse, integration testing has not commenced.
3. MAINTENANCE AND REPAIR
3.1. 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. 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 Customer to purchase such Equipment at its then current fair market value.
3.2. Geoverse will from time to time perform routine network maintenance on its network for network improvements and preventive maintenance (“Routine Network Maintenance”). Geoverse will use commercially reasonable efforts to provide at least two (2) days’ notice to Customer, which may be by email, of all Routine Network Maintenance that could affect Customer’s Service. At Customer’s request, additional maintenance services may be provided by Geoverse, subject to an additional charge, pursuant to a maintenance SOW.
3.3. Geoverse will perform non-regularly scheduled maintenance that may be required to address a serious degradation or loss of Service to Customer or to protect Geoverse’s network from immediate material harm (“Emergency Maintenance”). Geoverse will provide notice to Customer of Emergency Maintenance to Customer as soon as commercially practicable.
3.4. When Customer believes that a Service Failure has occurred, Customer may contact Geoverse to open an investigation of the cause of the Service Failure consistent with the trouble reporting and escalation procedures set forth in the applicable SOW. If there is a Service Failure, Geoverse and Customer will cooperate to restore Service. When required, Customer (or Customer’s designated agent) will perform any onsite or “remote hands” support necessary to assist in restoring the Service. If any Service Failure is caused by a factor outside the control of Geoverse, Geoverse will cooperate with Customer to conduct testing and repair activities at Customer’s cost.
3.5. Except as otherwise provided in this Agreement, a “Service Failure” means failure of the Geoverse network to meet the SLAs described in Section 4.
3.6. In the event any Service Failure is the result of Customer’s RAN, equipment or facilities or is due to Customer’s acts or omissions or if Geoverse’s investigation results in a “No Trouble Found,” Geoverse may charge Customer at its standard rates for the time and expense incurred by Geoverse in connection with investigating and resolving the issue.
4. SERVICE LEVEL AGREEMENTS (“SLAs”)
4.1. The Geoverse Network is designed for 99.9% availability. In the event of a shortfall in System Uptime affecting the Service, Geoverse will notify Customer of such event by contacting 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:
4.2. General Terms and Exclusions Applying To SLAs
SLAs apply to newly integrated Services and to Service reconfigurations requested by Customer commencing on the next calendar day following (i) the Acceptance Date, or (ii) completion of the Service reconfiguration, as applicable.
SLA coverage is limited to Geoverse Network elements under the control of Geoverse. Once 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:
Customer’s RAN or backhaul
a failure of Customer’s premises equipment or equipment of a Customer’s vendor;
power failure at Customer’s premises;
a failure in local access facilities connecting Customer to the Geoverse Network;
Force Majeure events;
any act or omission of Customer, Enterprise Customer, or any third party (including but not limited to, 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 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;
Customer’s negligence or willful misconduct, which may include 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 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.
4.3. 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 Customer. System Uptime excludes time for network maintenance, or any unavailability resulting from: (a) problems with or maintenance on Customer’s RAN, backhaul, applications, equipment, premises or facilities; (b) acts or omissions of 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.
4.4. Customer shall pass through to Enterprise Customer the SLAs described in this Section 4.4. Where Customer and Enterprise Customer agree on any modification of the SLAs described herein, Customer shall be solely responsible for complying with such SLAs, as modified. It is expected that Customer will provide 99.9% uptime to the Enterprise Customer for the RAN and network elements that Customer provides. For purposes of illustration, an example of an SLA table to be provided by Customer to Enterprise Customer is provided below:
5. CUSTOMER WARRANTIES
5.1. Customer represents and warrants to Geoverse on behalf of itself, its Enterprise Customer(s) and its other end users (if any) that (i) the Services will not be used in any manner in violation of any federal, state or local law, regulation, rule or ordinance (“Applicable Law”); (ii) the Services will not be used in any manner in violation of Geoverse’s Acceptable Use Policy available at https://www.geoverse.io/acceptable-use-policies/ (iii) any text, data, images, photographs, illustrations, graphics, sounds, video, programs, code, information and other materials (“Data”) used in connection with or transmitted by the use of the Services will not violate or infringe the rights of others including, but not limited to, any copyright, trade mark, trade dress, patent, trade secret, privacy, publicity or other personal or proprietary right; (iv) the Data will not include indecent or obscene materials or in any way constitute a defamation or libel of Geoverse or any third party; (v) Customer, its Enterprise Customer(s) and its end users (as applicable) have secured any consent, permission or other rights necessary for Geoverse to install the equipment needed to provide Services under this Agreement; and (vi) any use of the Services will fully comply with all relevant export and encryption laws and regulations (“Export Laws”) to assure that neither the Services nor any direct products thereof are used in a manner directly or indirectly in violation of Export Laws or intended to be used for any purposes prohibited by Export Laws, including, without limitation, nuclear, chemical or biological weapons proliferation. In the event that any Customer end user violates Geoverse’s Acceptable Use Policy, the Parties shall work together in good faith to halt any such violation any mitigate any damages arising therefrom as quickly as possible.
6. BILLING AND PAYMENT
6.1. Customer shall pay Geoverse for the Services at the rates and charges set forth in the applicable SOW (collectively “Rates”). Customer will be charged the Rates for the Services commencing as of the Acceptance Date, and thereafter, if applicable, Geoverse will invoice Customer on or about the fifth (5th) business day after the close of each billing cycle (“Invoice”).
6.2. Each Invoice shall be paid by 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 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.
7. BILLING DISPUTES
7.1. If Customer in good faith disputes any portion of an Invoice, 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 Customer does not report a Dispute within thirty (30) days of the date of Invoice, Customer shall have waived its right to dispute that Invoice.
7.2. 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 Customer, Customer may utilize the Conflict Resolution process specified in Section 21.
7.3. Any disputed amounts resolved in favor of Customer shall be credited to 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.
8. TAXES AND ASSESSMENTS
8.1. The Rates do not include governmental taxes, assessments, surcharges, and other fees relating to the sale of the Services to Customer (collectively, “Taxes”). 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 Customer in connection with the transactions and payments under this Agreement.
8.2. 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, 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. 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. Customer agrees to defend, indemnify and hold harmless Geoverse from Customer’s non-payment or failure to report any and all taxes related to Services provided to Customer under this Agreement.
9. WARRANTIES AND LIMITATION OF LIABILITY
9.1. 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 SOW issued under this Agreement.
9.2. 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 full 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.
9.3. 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. 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. 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 SERVICE CREDIT, AS FURTHER DESCRIBED IN THE APPLICABLE SOW.
9.4. 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 9.3 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 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 CUSTOMER FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS GEOVERSE HAS COLLECTED FROM CUSTOMER WITHIN THE SIX (6) MONTHS IMMEDIATELY PRECEDING ANY CLAIM WITH RESPECT TO THE SERVICES DELIVERED HEREUNDER. CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE THIS AGREEMENT TO FAIL ITS ESSENTIAL PURPOSE. CUSTOMER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR 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 CUSTOMER AND CUSTOMER’S END USER USERS ACCESS THE SERVICE AT THEIR OWN RISK.
10.1. 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 Customer of any obligations, warranties or representations made in the SOW or this Agreement, including compliance with Geoverse’s Acceptable Use Policy; (b) 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 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 Customer’s use of the Services.
10.2. For each claim or action for which the Indemnified Party seeks indemnification pursuant to this Section, the Indemnified Party shall provide Customer prompt written notice of such claim or action.
10.3. Customer will use counsel reasonably satisfactory to the Indemnified Party to defend each indemnified claim, and the Indemnified Party will cooperate (at the Customer’s expense) with the Customer in the defense. 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.
10.4. 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.
11. CONFIDENTIAL INFORMATION; CUSTOMER PROPRIETARY NETWORK INFORMATION
11.1. 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.
11.2. 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.
11.3. 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.
11.4. Customer Proprietary Network Information (“CPNI”). Both Geoverse and 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 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.
11.5. 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 Customer and its end users, if any. Customer may opt out of certain of these uses by emailing firstname.lastname@example.org or contacting Geoverse by phone. Customer warrants that it shall obtain an acknowledgement of Geoverse’s permitted use hereunder from any end users to whom Services are made available.
12. FORCE MAJEURE EVENT
12.1. Neither Party shall be held in default under, or in noncompliance with, the provisions of this Agreement 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.
12.2. 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. In no event shall a either Party’s obligation to make payments under this Agreement be excused by a Force Majeure Event.
13. TERM AND TERMINATION
13.1. All SOWs shall continue in effect for the period of time specified therein (“Initial Term”) or until earlier terminated in accordance with the terms of this Agreement. Following the Initial Term, each SOW will renew automatically for a period equal to the Initial Term (each, a “Renewal Term” and, together with the Initial Term, the “Term”), unless cancelled by either Party upon written notice delivered at least ninety (90) days prior to such automatic renewal. If at any time during the Term the Parties agree to amend an SOW to increase the number of LTE Radio Nodes supported by the Service (“Service Expansion”), the effective term for the Service Expansion shall align with the then-effective Term.
13.2. Without affecting any amounts due to Geoverse, Geoverse may terminate this Agreement for 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 Customer's payment due date.
13.3. Without affecting any amounts due to Geoverse, either Party may immediately terminate this Agreement upon the other Party's insolvency, dissolution or cessation of business operations.
13.4. 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 13.2), the other Party may terminate this Agreement upon thirty (30) days written notice, unless the breaching Party cures the breach during the thirty (30) day period. Upon any breach by 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 Customer; (c) immediately terminate this Agreement and Service without liability to Customer; (d) collect an Early Termination Fee from Customer; and (e) pursue such other legal or equitable remedies or relief as may be appropriate.
13.5. If at any time during the Initial Term or any Renewal Term Customer terminates the Service, other than pursuant to Section 13.3 or Section 13.4, 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 Initial Term or Renewal Term, as further described in the SOW.
14. LIMITATION OF ACTION; UNLAWFUL USE OF SERVICES
14.1. Customer shall be barred from all legal and equitable remedies, including without limitation, injunctive relief, that would require Geoverse to continue providing Services to Customer while any delinquent amounts not properly the subject of a Dispute remain unpaid.
14.2. Geoverse is not responsible for, and Customer shall defend and indemnify Geoverse against any and all fraudulent or otherwise unlawful use of the Services by Customer or its end users. Any claims of fraud or other unlawful use shall not constitute valid justification for dispute of an Invoice. 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.
15. INDEPENDENT CONTRACTORS
15.1. The Parties acknowledge and agree that Geoverse’s relationship with Customer is solely that of independent contractor, and 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.
16.1. 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.
17.1. 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.
18.1. This Agreement, the SOWs and all Exhibits, Schedules and other attachments hereto and thereto, 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.
19.1. 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.
20.1. 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.
21. CONFLICT RESOLUTION; GOVERNING LAW
21.1. 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.
21.2. 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 21.3. 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.
21.3. 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. IF A CONFLICT HAS NOT BEEN RESOLVED BY NEGOTIATION AS PROVIDED IN SECTION 21.2, 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.
21.4. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedure specified in Section 21.2 and Section 21.3 are pending. The Parties will take such action, if any, required to effectuate such tolling.
21.5. Each Party is required to continue to perform its obligations under the Agreement pending the final resolution of any Conflict covered by this section.
21.6. All deadlines specified in this section may be extended by mutual agreement in writing.
22.1. Either Party may (a) prepare press releases with respect to any SOW, which may be published after approval by the other Party (such approval not to be unreasonably withheld or delayed); (b) disclose to third parties that Customer is a Geoverse customer; and (c) use the name and identity of the other Party in advertising materials.
23.1. 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:
13920 SE Eastgate Way
Bellevue, WA 98005
Attention: Legal Department
with a copy to:
c/o ATN International, Inc.
500 Cummings Center
Beverly, MA 01915
Attention: General Counsel
If to Customer: To the address specified in the SOW.
24. SURVIVAL OF PROVISIONS
24.1. 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
25.1. 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.