1. Acceptable Use Policy
Ten4’s provision of Services is in all cases subject to Ten4’s Acceptable Use Policy (“AUP”), which is designed to help protect Ten4, its customers, and the Internet community in general from fraud, abuse of resources, and irresponsible or illegal activities.
a. Customer Responsibilities
Each Ten4 customer is responsible for the activities of all end-users and, by accepting service from Ten4, agrees to inform its customers and/or end-users of this AUP or its own Acceptable Use Policy, which must not be inconsistent with the terms herein.
b. Prohibited Conduct
Ten4 Services are only to be used for lawful and appropriate purposes. Customers may not transmit material in violation of any federal or state laws or regulations, including, but not limited to, obscenity, indecency, defamation or material infringing trademarks or copyrights.
Ten4 customers may not abuse or fraudulently use Ten4 products and services, nor allow or permit such use by others. The following activities illustrate some, but not all, prohibited uses under this AUP:
- Child Pornography: Receiving, transporting or distributing by any means, sexually explicit conduct involving children.
- Inappropriate Content: Using the services to transmit, distribute or store material that, as reasonably determined by Ten4, is inappropriate, obscene, defamatory, libelous, threatening, abusive, hateful or excessively violent.
- Denial of Service: Engaging in any activity that will interfere or attempt to interfere with the service of any other user, host or network on the Internet.
- Distribution of Viruses: Intentional distribution of software that attempts to and/or causes damage or annoyance to persons, data, and/or computer systems.
- Forging Headers: Forging or misrepresenting any message header, in part or whole, of any electronic transmission, originating or passing through the Ten4 network.
- Email Spamming or Mailbombing: The transmitting of unsolicited Email to multiple recipients, sending large amounts of Email repeatedly to a person to harass or threaten, or any attempt to use Ten4 services for SPAM.
- Unauthorized Access: Illegal or Unauthorized Access to Other Computers, Accounts, or Networks.
c. Violations and Enforcement
At Ten4’s sole discretion, violations of any element of this AUP may result in a warning to the offender followed by suspension or termination of service if the customer does not cease the violation. If Ten4 deems that a violation of this AUP has occurred, it may immediately suspend or terminate service with or without notice. Ten4 is not liable for any damages of any nature suffered by any customer, user, or any third party resulting in whole or in part from Ten4 exercising its rights under this AUP. Ten4 reserves the right to modify this AUP at any time.
Customer agrees to provide Ten4 reasonable access to Customer’s voice/data network, in order that Services may be performed as set forth in the SOF. In the event that said access is not provided as requested, Customer is aware that delivery and effectiveness of Services may be jeopardized and that additional charges may be incurred.
3. Security & Usage
Customer understands that Ten4 and its Underlying Service Providers cannot guaranty the security of any transmissions and will not be liable for any lack of security relating to the use of the Services. Notwithstanding the foregoing, Ten4 agrees to use no less than a reasonable degree of care, including relevant industry-standard practices, to protect the security of any Customer transmissions while providing Services to Customer.
The Services are for Customer’s use only and Customer may not resell the Services to any other party.
4. Late Charges
Amounts not paid when due (total Ten4 invoice, including all Service Provider and Ten4 charges) may accrue interest at a rate of 1.5% per month or the highest amount permitted by applicable law, whichever is less.
5. Warranty Exclusion
Except as expressly stated in this Agreement, Ten4 makes no warranties or representations, express or implied, either in fact or by operation of law, and specifically disclaims any warranties of merchantability or fitness for a particular purpose, applicable to the services.
6. Limitation of Liability
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY LOSSES OR DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, LOSS OF USE, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF CLIENTS, LOSS OF GOODWILL OR COST OF REPLACEMENT FACILITIES OR SERVICES, ARISING IN ANY MANNER FROM THIS AGREEMENT AND/OR THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS HEREUNDER.
Customer has no contractual relationship with any Underlying Service Providers through this Agreement and Customer is not a third-party beneficiary of any Agreement between Ten4 and an Underlying Service Provider. Customer understands and agrees that Underlying Service Providers will not have any kind of liability to customer, regardless of the form of action, including but not limited to failure or disruption of service.
Additionally, in no event will Ten4’s liability under this Agreement or otherwise arising out of Ten4’s provision of Services hereunder exceed an amount equal to the previous ninety (90) days’ charges for the services to which the liability relates.
The foregoing paragraphs of this Section 5 will also apply to all Underlying Service Providers with respect to the Services.
Each party will defend and indemnify the other party and the Underlying Service Providers, and each of their respective officers, employees, and agents, against any liabilities and reasonably related costs (including legal fees) incurred in connection with any third party claims for property damage, personal injury or death arising from or in connection with this Agreement to the extent said claims arise from the party’s gross negligence or willful misconduct. This indemnity shall survive the termination of the Master Services Agreement (“MSA”) and/or Addendums.
Additionally, Customer will defend and indemnify Ten4 and the Underlying Service Providers, and each of their respective officers, employees, and agents, against any liabilities and reasonably related costs (including legal fees) incurred in connection with any claim by an end user of the Services, it being understood that Customer, and not Ten4, is fully responsible for any such claims.
A party is in default of this Agreement if it breaches this Agreement, its Addendums or any SOF and fails to cure such breach as follows:
a. after written notice and a five (5) day cure period in the event of any failure to pay an amount due hereunder, or
b. after written notice and a thirty (30) day cure period in the event of any other breach.
If Customer is in default of this Agreement, all Charges accrued under any SOFs will be due and payable and Ten4 may, in addition to all other available remedies, disconnect Customer’s Services specific to that SOF.
If Ten4 is in default of this Agreement, only the Charges accrued as of the date of default will be due and payable to Ten4.
After completion of the initial Service Term, either party may terminate at any time with sixty (60) days’ written notice.
Upon default, the non-defaulting party may terminate this Agreement, its Addendums and/or an affected SOF by written notice.
If Ten4 Terminates for Cause, Ten4 will have no further liability or obligation under this Addendum and accompanying SOF.
If Customer terminates any Services (other than for Ten4’s default) prior to the completion of the initial Service Term, Customer shall pay Ten4 an Early Termination Fee equal to the MRC of the initial contract value times the number of months remaining under contract for that site.
The parties acknowledge that the ETF is a genuine estimate of the actual damages to Ten4 for Customer’s early termination of a Service and is not a penalty. In no event shall Customer be entitled to any refund of already paid Service Charges if this Agreement, its Addendums or any SOF is terminated, except for a termination based on Ten4’s default, as defined in Section 9 herein.
If the parties entered into a confidentiality or non-disclosure agreement in anticipation of an Agreement, such agreement is incorporated herein and shall apply instead of this Section. Otherwise, the parties acknowledge that they have or will exchange certain confidential information expressly designated or which should reasonably be known as “confidential” (“Confidential Information”) and each party agrees that neither party will (a) use the other party’s Confidential Information except for the purpose(s) for which it is disclosed or (b) disclose the other party’s Confidential Information to any third party except (i) under an identical confidentiality restriction to the receiving party’s employees or contractors who have a need to know Confidential Information in connection with the purposes for which it is disclosed or (ii) when compelled by a court or other government agency (with as much advance notice to the disclosing party as reasonably possible).
Ten4 acknowledges that it may receive certain of Customer’s information that constitutes “customer proprietary network information” or “customer proprietary information” under applicable law, and Ten4 agrees that it will hold all such information in compliance with applicable law.
11. Other Terms
Neither party shall be responsible for any loss, harm, damage, or failure to comply with any obligation hereunder resulting from circumstances beyond its reasonable control (commonly referred to as force majeure events) including, but not limited to fire, flood, war, strikes, cable cuts, acts of terrorism, explosions, loss of power, governmental restrictions, acts of third parties, or “acts of God.” In additional, Customer will not be obligated to pay for the Services during periods of force majeure, and either party may terminate an affected SOF upon notice to the other if a force majeure event continues uninterrupted for a period of thirty (30) days or longer.
Ten4 may subcontract work to be performed under their Agreements, Addendums and SOFs but shall retain responsibility for the work.
Neither party may assign its rights and obligations, whether by operation of law or otherwise, without the prior written consent of the other party, not to be unreasonably withheld.
Without the prior written consent of the other Party, neither Party will (i) publicly use the name, logo or other identifying marks of the other Party, or (ii) issue or permit the issuance of any press release or other public statement regarding any Agreement or the Parties’ relationship.
This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Delaware, exclusive of conflict or choice of law rules.
Any notices, requests, consents and other communication shall be in writing and shall be deemed to have been delivered on the date (a) personally delivered, (b) mailed, postage prepaid, by certified mail with return receipt requested, or (c) faxed and confirmed. All communications to Ten4 under this section shall be as follows:
1700 Union Avenue, Suite B
Baltimore, MD 21211
Attn: Legal Dept.
Any fully executed Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous oral and written agreements, commitments, or understandings with respect to the matters provided for herein. Said Agreements, including Addendums and SOFs, may not be modified except by a writing signed by both parties. In the event that any of the provisions herein are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder. The waiver by either party of a breach, default, delay or omission of any of the provisions herein by the other party will not be construed as a waiver of any subsequent breach of the same or other provisions.
The above information is Confidential and Proprietary.