Master Service Agreement
1. The Services
COMPANY agrees to sell to Customer, and Customer agrees to purchase from COMPANY, Services, as set forth in each order form entered into between the Parties (each an “Order Form”).
This Agreement will commence on the Effective Date and will continue for the duration specified in the Order Form (the “Term”). This Agreement shall automatically renew at the end of the Term on a month-to-month basis unless terminated by either Party upon thirty (30) days written notice prior to the expiration of the Initial Term or any subsequent renewal term.
3. The Monthly Commitment
3.1 Payment. During the Term, Customer agrees to purchase a minimum amount of Services from COMPANY on a monthly basis (the “Monthly Commitment”) which amount is set forth in the applicable Order Form. The Company is entitled to the full amount of the Monthly Commitment even if the amount that is otherwise payable for usage of Services is less than the Monthly Commitment. Payment of the Monthly Commitment is due at the beginning of each month. To the extent the Term of this Agreement commences before the first day of a calendar month, the Monthly Commitment shall be prorated for the period from such date through the end of the first full calendar month of the Term, and due prior to commencement of provision of Services hereunder.
3.2 Unused Monthly Commitment Services and Excess Usage. For the avoidance doubt, a shortfall between the actual usage of Services and the monthly Commitment may not be rolled over to any subsequent month. Usage of Services in excess of the Monthly Commitment (“Excess Usage”) shall be invoiced to Customer at the beginning of the following month. Amounts due for Excess Usage shall be payable in full within fifteen (15) days from receipt of the invoice (the “Due Date”). Any payments not received by the Due Date will bear interest at a rate of one and one-half percent (1½ %) per month or the maximum rate permitted by law, whichever is less, from the Due Date until paid in full.
3.3 Manner of Payment. Payment for Services shall be via wire transfer or credit card payment of U.S. Dollars. All wire transfer or credit card user fees (including foreign currency or international transaction fees) shall be borne by Customer, such that COMPANY receives the full amount of the amount billed. Customer authorizes COMPANY to charge Customer’s credit card for payment of Services, including the Monthly Commitment or any other fees due hereunder.
3.4 Rates and Codes. Where Services comprise of international long distance voice termination services (including “Bring Your Own Carrier”), rates for Services are shown in terms of full minutes and in accordance with the rate notifications sent by COMPANY to Customer. COMPANY reserves the right to increase or decrease its rates and/or change destination codes at any time upon email notice; any such increase or decrease shall be effective immediately unless otherwise stated in the email notice. Notice of such changes shall be sent via email to the email address(es) provided by Customer. It is Customer's sole responsibility to maintain and update such email address(es). All in-effect rates and codes will be listed on the web portal.
4. Resale of Services.
All Services are provided for resale to Customer's customers, end users or subscribers. Customer is responsible for billing and collection from its customers, end users and subscribers including all taxes and fees. Customer is responsible for obtaining and maintaining all licenses, approvals and other authorizations necessary for the resale of Services. Customer hereby agrees to execute such other documents (including but not limited to Universal Service Fund forms) as COMPANY may reasonably request from time to time. Customer shall implement commercially reasonable measures to prevent Services from being used for any unlawful purpose whatsoever including the transmission or offering of any information or services which are unlawful, abusive, harmful, threatening, defamatory, or which in any way infringe copyright, intellectual property rights, trademarks, or which are pornographic, or that may cause offense in any way. At the request of COMPANY, Customer will inform COMPANY of the aforementioned measures in effect and explain its operation. If such internal operating methods are deemed by COMPANY in its sole discretion to be inadequate, COMPANY may require Customer to implement additional measures to be mutually agreed upon by the parties.
Where Services comprise of international long distance voice termination services (including “Bring Your Own Carrier”), the Parties shall connect their respective telecommunications switches via VoIP equipment which may be provided by a third-party supplier ("Supplier"). Each Party shall be responsible for procuring its VoIP equipment from its chosen Supplier and for all contractual obligations with that Supplier. Each Party will notify the other of the date from which the notifying Party's connectivity will be available. It is the Customer’s sole responsibility to safeguard its passwords, equipment and interconnection. COMPANY will not be liable for any unauthorized traffic which originates or terminates over the interconnect.
6. Suspension of Services
All Services are offered on a commercially reasonable basis only and are not guaranteed. In addition, COMPANY reserves the right to immediately suspend all or any part of Services if: (i) Customer engages in activities that, in COMPANY’s sole discretion, may cause disruption or damage to COMPANY’s network or facilities; (ii) COMPANY detects any suspected fraudulent use of Services and/or Artificially Inflated Traffic (defined below), whether directly or indirectly; (iii) COMPANY requests identifying or other documentation from Customer for legal, administrative or regulatory purposes and Customer fails to provide appropriate documentation (in COMPANY 's sole discretion) within a reasonable time; or (iv) Customer fails to pay the Monthly Commitment during the Term, or any amounts invoiced under section 3.2 of this Agreement by the Due Date.
7. Taxes and Fees
All Services under this Agreement are provided exclusive of any applicable federal, state, local, or foreign taxes, duties, or charges imposed by any governmental authority, or as otherwise provided pursuant to this Agreement. Such taxes, duties, or charges shall be paid directly by Customer. All amounts payable by Customer under this Agreement shall be made without deduction or counterclaim and, except to the extent required by any law or regulation, shall be made free and clear of any deduction or withholding on account of any tax, duty or other charges of whatever nature imposed by any taxing or governmental agency or authority. If Customer is required by any law or regulation to make any such deduction or withholding, Customer shall, together with the relevant payment, pay such additional amount as will ensure that COMPANY actually receives and is entitled to retain, free and clear of any such deduction or withholding, the full amount which it would have received if no such deduction or withholding had been required. COMPANY may impose any governmental or regulatory fees on a retroactive basis. Further, all United States-addressed Customers shall be required to submit, on an annual basis, a properly completed Universal Service Fund form (“USF Form”) to COMPANY. Failure to submit such USF Form to COMPANY’s satisfaction will result in suspension of Services.
8. Disputed Charges
If Customer, in good faith, disputes the amount of any charge included in a bill, Customer must notify COMPANY in writing of the disputed charge within thirty (30) days of billing and provide documentation reasonably required to resolve the dispute. Failure to contest a charge within thirty (30) days of the date of billing will create an irrefutable presumption of the correctness of the charge and Customer shall have waived its right to dispute those charges. Raising of a dispute shall not entitle Customer to withhold payment of the Monthly Commitment.
COMPANY reserves the right to terminate Services, or any portion thereof, upon a material breach of this Agreement by Customer. Upon termination, COMPANY will be entitled to immediately cease providing Services. Notwithstanding termination, the provisions that, by their nature survive termination, will continue to apply. Failure to pay the Monthly Commitment shall be deemed a material breach of this Agreement. Any suspension or termination shall not relieve Customer of its obligation to pay any amounts due for the remainder of the Term hereunder, including the Monthly Commitment.
10. Force Majeure
Neither Party shall be responsible nor liable for any obligations (except for Customer’s obligation to make payment when due) arising out of, in connection with or relating to any matter occasioned by or due to fire, flood, water, the elements, acts of God, war and threat of imminent war, labor disputes or shortages, pandemic, utility curtailments, power failures, explosions, civil disturbances, failure of network circuits, failure of any third party hosted services, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond such Party's reasonable control. The foregoing shall not excuse Customer’s payment obligations.
11. Limitation of Liability
In no event shall either party be liable for any indirect, incidental, consequential, exemplary, punitive, reliance or special damages, or for any loss of revenue, profits, use, data, goodwill or business opportunities of any kind or nature whatsoever, arising in any manner from Services. Regardless of whether any claim is based in contract, tort, or other legal theory, COMPANY's liability under or in connection with Services shall be limited to five thousand ($5,000) dollars. COMPANY shall not be liable for any damages, whether direct or indirect, caused by services or equipment that is not furnished or managed solely by COMPANY. The Parties acknowledge that the limitations on liability set out in this clause have been negotiated between the Parties and are regarded by the Parties as being reasonable in all circumstances.
12. No Warranty
Except as specifically set forth herein, COMPANY makes no warranty to Customer or any other person or entity, whether express or implied or statutory, as to the description, quality, merchantability, non-infringement, completeness or fitness for a particular use of any of Services, all such warranties hereby being expressly excluded and disclaimed.
13. Fraudulent Calls and Artificially Inflated Traffic
Customer shall not dispute any charges or withhold payment on the basis that Fraudulent Calls or Artificially Inflated Traffic comprised a portion of the traffic volume. Customer shall be responsible for all charges associated with any Fraudulent Calls and Artificially Inflated Traffic. It is Customer's sole responsibility to take immediate action to block any Fraudulent Calls and Artificially Inflated Traffic. For purposes of this Agreement, "Fraudulent Calls" shall include, but not be limited to, deliberate exploitation of systemic errors in COMPANY's routing system. For purposes of this Agreement, "Artificially Inflated Traffic" means any activity which: (i) has the effect, intended effect or likely effect of preventing COMPANY's billing system from capturing any necessary billing information (in relation to the conveyance of a call); (ii) causes incorrect billing by COMPANY's billing system, or of an associated party; (iii) any situation where any person or entity is misled into making, receiving or prolonging calls; or (iv) is determined by COMPANY, in its sole and absolute discretion, to be bad faith usage of Services. In the event Fraudulent Calls and/or Artificially Inflated Traffic causes COMPANY to be charged more by its terminating partners than the rate(s) quoted by COMPANY to Customer, then in addition to COMPANY's right to seek all remedies available to it at law or in equity, COMPANY reserves the right to re-rate all such traffic at the higher termination rate for the destination(s) in question and Customer agrees to pay all such re-rated charges.
Customer shall indemnify and hold harmless COMPANY and all of its officers, agents, directors, shareholders, subcontractors, subsidiaries, employees and affiliates from and against any claim, cost, damage, demand, liability, loss, penalty, proceeding and reasonable attorney's fees imposed upon COMPANY by reason of any claims or damages arising out of or related to: (i) Customer's own customers, end users or subscribers use of Services; (ii) any fraudulent use of Services, including but not limited to Fraudulent Calls and Artificially Inflated Traffic; (iii) any other act or omission by the Customer, including without limitation breach of any material obligation herein; and (iv) Customer's or any of its affiliates violation of the Anti-Bribery clause below. Customer will not settle any claims, demands, suits, proceedings or actions without COMPANY's prior written consent, which consent shall not be unreasonably withheld or delayed.
15. Governing Law/Dispute Resolution
This Agreement and the relationship between the Parties hereto will be governed by the laws of the State of New Jersey, USA. All disputes arising out of or related to this Agreement that cannot be resolved between the Parties shall be adjudicated in a court of competent jurisdiction, including the courts located in Essex County, New Jersey, USA. COMPANY and Customer consent to personal jurisdiction in New Jersey, USA.
17. Additional Restrictions
Customer shall not use and shall not permit its customers to use any Services purchased from COMPANY to originate and/or otherwise transmit calls that violate the “Telephone Consumer Protection Act” (“TCPA”) and/or the “Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act” (“TRACED Act”) and/or the rules promulgated thereunder. This prohibition includes but is not limited to the following. When placing telemarketing calls to end-users located in the United States:
· Customer shall not make or transmit and shall not permit its customers to make or transmit telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent.
· Customer shall not make or transmit and shall not permit its customers to make or transmit any non-emergency call using an automatic telephone dialing system (“autodialer”) or an artificial or prerecorded voice to a wireless telephone number without COMPANY’s prior express consent. If the call includes or introduces an advertisement or constitutes telemarketing, consent must be in writing. If an autodialed or prerecorded call to a wireless number is not for such purposes, consent may be oral or written.
· Customer may not initiate or transmit and shall not permit its customers to initiate or transmit a telephone solicitation to a residential telephone subscriber who has registered his or her telephone number on the national “Do-Not-Call” registry.
· Customer acknowledges and shall advise its customers that telemarketing calls can only be made between the hours of 8 a.m. and 9 p.m. (local time at the called party’s location).
· Customer and its customers must comply with limits on “abandoned calls” and employ other consumer-friendly practices when using automated telephone-dialing equipment. A telemarketer must abandon no more than 3 percent of calls answered by a person and must deliver a prerecorded identification message when abandoning a call. Two or more telephone lines of a multi-line business are not to be called simultaneously. Telemarketers must not disconnect an unanswered telemarketing call prior to at least 15 seconds or four rings.
· Customers and its customers that use autodialers to sell services must maintain records documenting compliance with call abandonment rules.
· All prerecorded messages, whether delivered by automated dialing equipment or not, must identify the name of the entity responsible for initiating the call, along with the telephone number of that entity that can be used during normal business hours to ask not to be called again.
· Customer and its customers must transmit caller ID information, when available, and must refrain from blocking any such transmission(s) to the consumer. Customer and its customers may not alter the caller ID information with intent to deceive the recipient or disguise the origin of the call.
If any calls originated or otherwise transmitted by Customer to COMPANY violate the terms of the TCPA and/or the TRACED Act and/or the rules promulgated thereunder, then COMPANY may, at its sole discretion, in addition to the remedies contained in this Agreement, suspend or terminate Customer’s service immediately and freeze some and/or all prepaid monies remitted to COMPANY until such time that COMPANY, at its sole discretion, has determined it shall not be subject to any penalties, fines and/or “voluntary contributions” by the Federal Communications Commission and/or other third parties who have or may obtain a legal right of payment by COMPANY as a result of COMPANY’s transportation of telecommunications or VOIP by Customer. Should COMPANY be subject to any penalties, fines and/or “voluntary contributions,” COMPANY may use any frozen payments as partial payment to the third party(ies) and COMPANY may seek payment from Customer for any additional, required payments. Customer will cooperate with and promptly provide information requested in connection with any traceback requests.
18.1 Confidential Information. The Parties hereby acknowledge that during the course of the Parties relationship, either Party may acquire information regarding the other or its business activities, in oral or written form, of a confidential and proprietary nature (hereinafter "Confidential Information"). Each Party shall hold the Confidential Information in strict confidence and shall not reveal the Confidential Information, or any portion thereof to any third party, except pursuant to any judicial or governmental request, requirement subpoena or order. This confidentiality obligation shall survive expiration or termination of this Agreement for a period of one (1) year. Notwithstanding the foregoing, Customer agrees that COMPANY may, without Customer’s consent, share carrier origination information and CDRs upon request from COMPANY’s terminating partners, or pursuant to a judicial or governmental request or pursuant to a traceback request. Each Party agrees that, without the other Party's written consent, it will not use the name, trademarks, trade names, service marks or logos of the other Party or of any of its affiliated companies in any advertising, publicity, press releases or sales presentations. It is expressly understood that the Parties hereto are acting hereunder as independent contractors.
18.2 No waiver. The failure of either Party to give notice of default or to enforce compliance with any of the terms or conditions of this Agreement, the waiver of any term or condition of this Agreement, or the granting of an extension of time for performance, will not constitute a permanent waiver of any term or condition of this Agreement. No amendment by Customer of the provisions set forth herein shall be binding unless made in writing and signed by a duly authorized representative of COMPANY. COMPANY may assign this Agreement or any rights hereunder upon notice to Customer. Customer may not assign this Agreement or any rights hereunder without the prior written consent of COMPANY. In the event it is determined that any part or provision of this Agreement is invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement. Nothing in this Agreement will prevent COMPANY or Customer from entering into similar arrangements with, or otherwise providing Services to, any other person or entity. This Agreement sets forth the entire agreement and understanding of the Parties hereto related to the subject matter hereof.
18.3 Notices. Except as set forth herein, all notices and communications from COMPANY to Customer under this Agreement will be given via email to the email address(es) provided by Customer on the web portal. All formal notices and communications from Customer to COMPANY under this Agreement will be given in writing to Attention: IDT Legal Department; email@example.com
18.4 Account Activation. Customer understands and agrees that a full activation (not a test account) of Customer's account is subject to COMPANY's receipt of Customer's initial prepayment and COMPANY's performance of certain background checks on Customer. COMPANY reserves the right to suspend and/or terminate Services at any time in the event COMPANY determines, in its sole discretion, that it cannot verify Customer's background information.