2. Service Fees and Billing. Customer agrees to pay for the Setup Fees and Monthly Service Fees indicated on the Order Forms (collectively, “Service Fees”).
2.1. Setup Fees. Customer shall pay for the Setup Fees along with the first Monthly Service Fees (the “Activation Fee”) upon ActivePBX’s acceptance of this Agreement and the Order Forms. ActivePBX will begin infrastructure equipment setup, and other setup services described in the Service Description after it receives and accepts: (1) completed Order Forms, (2) electronic confirmation of acceptance of this Agreement, and (3) payment of amounts due under this section and the Order Forms.
2.2. Monthly Service Fees. Customer shall begin paying for Monthly Services on the date that Services are activated. The Services are considered active when they are on-line and accessible through the Internet and the Customer has been notified of the method to access the Services.
2.3. Monthly Overage Fees. Customer shall pay for Overage Fees when their resource usage exceeds the monthly allotment of resources included in their service plan. The rates for Monthly Overage Fees are published on the ActivePBX Web Site. If the daily rate at which the Customer is accruing Monthly Overage Fees in any given month will cause the Estimated Monthly Overage Fees (calculated by multiplying the last daily rate by the number of days remaining in the month) for that month to exceed the Monthly Service Fees by two hundred percent (200%), ActivePBX may require Customer to secure payment for the Estimated Monthly Overage Fees immediately. It is the Customer’s responsibility to monitor their usage using the tools provided on the ActivePBX Web Site.
2.4. Payment. Customer shall pay for all fees and charges on or before the invoice due date of each and every month of this Agreement (the “Due Date”) with all amounts being paid without demand at the offices of ActivePBX. Late payments will accrue interest at a rate of one and one-half percent (1 ½%) per month, or the highest rate allowed by applicable law, whichever is lower. If in its judgment ActivePBX determines that Customer lacks the financial resources to meet its obligations to ActivePBX, ActivePBX may require Customer to secure payment of its obligations to ActivePBX before providing Services.
2.5. Taxes. All payments required by this Agreement are exclusive of applicable taxes and Customer shall be solely responsible for the same.
2.6. Modification of Service. Upon notice to Customer, ActivePBX may modify or suspend Customer’s Service as necessary to comply with any law or regulation as reasonably determined by ActivePBX, including, without limitation, any use contrary to the Digital Millennium Copyright Act of 1998, 17 U.S.C. 512.
3. Service Maintenance. Customer acknowledges that from time to time ActivePBX may deem it necessary to limit or suspend the availability of the Services to perform routine and remedial maintenance to the network, hardware, software, or other related assets.
4. IP Addresses. Any Internet protocol (“IP”) addresses that ActivePBX may assign to you remain under the ownership and control of ActivePBX. ActivePBX may, at its sole discretion change or remove any and all IP addresses.
5. Security. ActivePBX does not guarantee security of the information stored on its servers or passing through its Network. If your Site or Server is deemed to have been compromised and found to be the source of an attack or security breach on other Customers, Servers or Internet Users, ActivePBX may immediately shut down your Site or Server. You will be responsible for any costs to correct an attack or breach resulting from the compromise of your Site or Server.
6. Other Networks; Approval and Usage. Services include the ability to transmit data beyond ActivePBX’s Network, through other networks, public and private. Customer’s use of or presence on other networks may require approval of the respective network authorities and may be subject to any acceptable usage policies established by those networks. Customer will not hold ActivePBX responsible for, and ActivePBX expressly disclaims liability for, Customer’s violation of such policies. Customer understands that ActivePBX does not own or control other networks outside of its Network, and ActivePBX is not responsible or liable for performance (or non-performance) of those networks or the interconnection points between the Services and other networks that are operated by third parties.
7. Third Party Products. ActivePBX may provide you access to third party software and/or services through relationships ActivePBX has established with certain commercial vendors (“Third Party Vendors”). Unless otherwise noted, the Customer understands that support for Third Party Products is provided by ActivePBX and not the Third Party Vendor. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CUSTOMER’S SOLE RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ActivePBX NOR ANY THIRD PARTY VENDOR MAKES ANY REPRESENTATIONS OR EXPRESS WARRANTIES REGARDING ANY OF THE THIRD PARTY PRODUCTS AND DISCLAIMS ALL WARRANTIES, DUTIES AND CONDITIONS WITH RESPECT TO THE THIRD PARTY PRODUCTS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, OR CORRESPONDENCE TO DESCRIPTION. THERE ARE NO WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR QUIET POSSESSION WITH RESPECT TO THE THIRD PARTY PRODUCTS. THE ENTIRE RISK AS TO THE QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE THIRD PARTY PRODUCTS, IF ANY, REMAINS WITH YOU, THE CUSTOMER.
8. Resale. Customer may resell the Service. Customer assumes all liabilities arising out of or related to such third party sites and communications and will indemnify and hold ActivePBX harmless from such liabilities and/or the resale of said services. Customer agrees to enter into written agreements with any and all parties to which it resells any portion of the Services with terms and conditions at least as restrictive and protective of ActivePBX’s rights as the terms and conditions of this Agreement.
9. Acceptable Use Policy. Customer expressly agrees to at all times conform its use of the Service and Network to ActivePBX’s Acceptable Use Policy, as updated from time to time. If ActivePBX is informed by government authorities or other parties of inappropriate or illegal use of ActivePBX’s facilities (including but not limited to the Network) or other networks accessed through ActivePBX, or ActivePBX otherwise learns of such use or has reason to believe such use may be occurring, then Customer will cooperate in any resulting investigation by ActivePBX or government authorities. If Customer fails to cooperate with any such investigation or fails to immediately rectify any illegal use, ActivePBX may immediately suspend Customer’s Service without further notice to Customer.
10. Term. Unless a long term Service Agreement was executed between ActivePBX and Customer, this Agreement shall commence on the date Services are first provided by ActivePBX and continue for one (1) month (the “Initial Term”), and, unless terminated as herein provided, shall be automatically renewed at the end of the Initial Term and ongoing successive terms for a period of one (1) month on the same terms and conditions contained herein unless either party notifies the other party in writing at least fifteen (15) days prior to the expiration of the current term that it does not want the Term to so renew.
11.1. For Nonpayment. After fifteen (15) days of non-payment from the Due Date, ActivePBX may disable Service. To re-enable Service, ActivePBX will require a reconnection fee. After thirty (30) days of nonpayment from the Due Date, or such longer period as ActivePBX’s Billing Terms & Conditions may provide, ActivePBX may terminate the Service permanently. Termination does not terminate Customer’s obligations under this Agreement, including the obligation to pay all fees for Service during the Term.
11.2. Unacceptable Use; Bankruptcy. ActivePBX may terminate this Agreement upon written notice to Customer for violation of the Acceptable Use Policy. ActivePBX may also terminate this Agreement if 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 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.
11.3. For Cause. Either party may terminate this Agreement if the other party materially breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees which failure is subject to Section 11.1 above or for failure to comply with ActivePBX’s Acceptable Use Policy as set forth in Section 11.2.
11.4. No Liability for Termination. Neither party will be liable to the other for any termination or expiration of this Agreement in accordance with its terms. However, expiration or termination will not extinguish claims or liability (including, without limitation, for payments due) arising prior to such expiration or termination.
11.5. Effect of Termination. Upon the effective date of expiration or termination of this Agreement: (a) ActivePBX will immediately cease providing the Services; (b) any and all payment obligations of Customer under this Agreement will become due immediately, including but not limited to Monthly Services through the end of the term indicated on the Order Forms.
11.6. Survival. The following provisions will survive any expiration or termination of the Agreement: 8, 12, 13, 14 (for a period of three (3) years), 11.4-11.6, and 15.
12. Defense of third party claims and Indemnification.
12.1. Defense. Customer will defend ActivePBX, its directors, officers, employees, affiliates and customers (collectively, the “Covered Entities”) from and against any and all claims, actions or demands brought by or against ActivePBX and/or any of the Covered Entities alleging: (a) with respect to the Customer’s business: (I) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming, or any other offensive, harassing or illegal conduct or violation of the Acceptable Use Policy; (b) any damage or destruction to the Network, ActivePBX premises, ActivePBX Equipment or to any other ActivePBX customer which damage is caused by or otherwise results from acts or omissions by Customer, Customer Representative(s) or Customer’s designees; or (d) any other damage arising from the Customer’s business (collectively, the “Covered Claims”).
12.2. Indemnification. Customer hereby agrees to indemnify ActivePBX and each Covered Entity from and against all damages, costs, and fees awarded in favor of third parties in each Covered Claim, and Customer will indemnify and hold harmless ActivePBX and each Covered Entity from and against any and all claims, demands, liabilities, losses, damages, expenses and costs (including reasonable attorneys fees) (collectively, “Losses”) suffered by ActivePBX and each Covered Entity which Losses result from or arise out of a Covered Claim.
12.3. Notification. Customer will provide ActivePBX with prompt written notice of each Covered Claim of which Customer becomes aware, and, at ActivePBX’s sole option, ActivePBX may elect to participate in the defense and settlement of any Covered Claim, provided that such participation shall not relieve Customer of any of its obligations under this Section 12.
13. Limitations of Liability.
13.1. Damage to Customer Business. In no event will ActivePBX be liable to Customer, any Customer Representative, or any third party for any claims arising out of or related to Customer’s business, Customer’s customers or clients, Customer Representative’s activities at ActivePBX or otherwise, or for any lost revenue, lost profits, replacement goods, loss of technology, rights or services, incidental, punitive, indirect or consequential damages, loss of data, or interruption or loss of use of Service or of any Customer’s business, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.
13.2. Maximum Liability. Notwithstanding anything to the contrary in this Agreement, ActivePBX’s maximum aggregate liability to Customer related to or in connection with this Agreement will be limited to the total amount paid by Customer to ActivePBX hereunder for the Three (3) month period prior to the event or events giving rise to such liability.
14. Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, including the terms and conditions of this Agreement (“Confidential Information”). Confidential Information will include, but not be limited to, each party’s proprietary software and customer information. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information and will take reasonable precautions to protect the confidentiality of such information. Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; (iv) is independently developed by the receiving party; or (v) is required to be released by law or regulation, provided that the receiving party provide prompt written notice to the disclosing party of such impending release, and the releasing party cooperate fully with the disclosing party to minimize such release.
15. Miscellaneous Provisions.
15.1. Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
15.2. Marketing. Customer agrees that ActivePBX may refer to Customer by trade name and trademark, and may briefly describe Customer’s Business in ActivePBX’s marketing materials and web site. Customer hereby grants ActivePBX a limited license to use any Customer trade names and trademarks solely in connection with the rights granted to ActivePBX pursuant to this Section 15.2. All goodwill associated with Customer’s trade name and trademarks will inure solely to Customer. Customer may display the ActivePBX logo, or any other ActivePBX trademark or service mark, on Customer’s web sites or marketing literature only after obtaining ActivePBX’s written approval on a case-by-case basis, and provided that Customer abides by the ActivePBX trademark guidelines and such other guidelines as ActivePBX may provide Customer. All goodwill associated with ActivePBX’s trade name, trademarks, slogans and logos will inure solely to ActivePBX.
15.3. Credit Check. ActivePBX, at its sole discretion, determination and expense, may take the necessary and required action to conduct a credit check on Customer with any one or more of the major credit reporting agencies. Customer shall reasonably cooperate with ActivePBX to obtain credit information.
15.4. Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
15.5. Assignment. ActivePBX reserves the right and Customer grants the right for ActivePBX to assign the rights and responsibilities of this Agreement to a third party. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of ActivePBX in each instance. Notwithstanding the foregoing, Customer upon notice to ActivePBX, may assign all of its rights and delegate all of its duties under these terms and conditions and any applicable Contract to (a) a subsidiary, affiliate or parent company; (b) any entity that Customer controls, is controlled by, or is under common control with; or (c) any entity which succeeds to all or substantially all of the party’s assets, whether by merger, sale or otherwise, provided such entity is not a competitor to ActivePBX; has a net worth at least equal to Customer at the time of the requested assignment; and agrees in writing to assume all duties, obligations and responsibilities of Customer under all applicable Contracts and these terms and conditions and to otherwise be bound as provided for herein. Any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Each request by Customer for a proposed assignment shall be accompanied by a nonrefundable fee payable to ActivePBX in the amount of Five Hundred Dollars ($500.00) to cover ActivePBX’s administrative, legal and other costs and expenses incurred in processing each of Customer’s requests.
15.6. Notices. Any notice or communication required or permitted to be given hereunder may be delivered personally, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party first indicated below, or at such other address as either party may provide to the other by written notice. Such notice will be deemed to have been given as of the date it is delivered, or five (5) days after mailed or sent, whichever is earlier.
15.7. Relationship of Parties. ActivePBX and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between ActivePBX and Customer. Neither ActivePBX nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
15.8. Choice of Law and Attorney’s Fees. This Agreement will be governed by and construed pursuant to the laws of the State of Florida. Jurisdiction and venue for purposes of any litigation in connection herewith shall be in the Circuit Court located in Miami-Dade County, Florida. In the event of any litigation hereunder the prevailing party shall be entitled to an award of reasonable attorney’s fees and court costs at all trial and appellate court levels.
15.10. Severability. Should any terms of this Agreement be declared void or unenforceable by any arbitrator or court of competent jurisdiction, such terms will be amended to achieve as nearly as possible the same economic effect as the original terms and the remainder of this Agreement will remain in full force and effect.
Last Modified on 01/01/2011