This Master Service Agreement (“MSA”) shall constitute a binding contractual agreement between 46 Labs LLC, an Oklahoma limited liability company (“46labs”, “Company”, “us” or “we”), and the subscriber of services ("Customer" or “you”). The MSA shall govern the relationship of the parties in regards to Customer’s use of the Company's services including the Peeredge Cloud Switch and any related services (“Services”). This MSA contains the Standard Terms of Service (“TOS”), Acceptable Use Policy (“AUP”), Service Level Agreement (“SLA”), Privacy Agreement (“PA”), and includes any applicable addendum agreed to in writing between the parties. Customer agrees to be bound to all agreements in this MSA. The terms of this Agreement shall apply to the parties’ relationship unless and until they are replaced by a final term agreement between the parties.
Note: Company reserves the right to supplement and/or amend, at any time, the terms and conditions of its Trial MSA, including the TOS, AUP, SLA, PA, and any applicable addendum upon prior notice to the Customer. Company will notify its Customers through the customer portal of any changes affecting cancellation, payment of fees, or the SLA. Amendment notices are deemed delivered as of the first time that a Customer logs on to the 46 Labs user interface after the time that the notice is posted. It is the Customer’s responsibility to review Company’s policies on a frequent basis to ensure compliance because the MSA in place during your most current month applies, not the MSA which was in place when you registered. Changes requested by Customer to any of these agreements or to the MSA must be agreed to in writing by Company. Customer understands and agrees that by signing in and using the Company services it is acknowledging and agreeing to this MSA and as such, it is a binding agreement between the parties.
Customer agrees to the following terms and conditions of Services to use of the Company's Services:
1. Term and Termination: Customer agrees to a month-to-month contract term for Services. This contract for Services is automatically renewed each month. Customer may cancel this Agreement subject to the procedures set forth in Section 8. Company may terminate this MSA and any related Services (1) immediately upon non-payment as set forth in Section 9; (2) if Customer violates the Acceptable Use Policy, including Section 7.1 (Permitted Use); (3) upon providing Customer with notice of non-renewal at least twenty (20) days prior to the expiration of any renewal term; or (4) upon any other breach of this MSA that is not cured upon receiving notice subject to the described cure provisions for each such breach described hereinafter.
2.1. Monthly Billing. 2.1. Fees are due in advance of the monthly service cycle and will be billed on the anniversary date every month. Fees for service(s) ordered by the Customer shall begin on the date of the initial order and shall be pro-rated for the first period the end of the month, unless otherwise agreed to by the parties, at which point that Standard Billing Date shall be the first day of the next month following the free trial and shall serve as the monthly anniversary date (“Anniversary Billing Date”, “Anniversary” or “Renewal Date”) for all future billings including one-time fees, upgrades, additional services, cancellations and service credits.
2.2. Monthly Service Fees. Monthly Service Fees for Basic Services service shall be as follows: a) For the first thirty (30) days (the Trial Period) and for the first 500 ports and 50 cps capacity of the Service, there shall be no charge. b) Following the Trial Period and until the parties reach a definitive and separate term agreement, Customer shall be invoiced
|Peeredge Cloudswitch Ports||500||$2.00/Port||$1000.00|
|Media Ports||As Ordered||.25/Port|
2.3. Additional Service Fees. Additional services, ordered on the Anniversary will be billed for the full month service and will continue each month on the Anniversary. Additional services ordered after the normal Anniversary will be pro-rated to the next anniversary date and billed as a one-time pro-rata charge. Future charges will appear as full monthly fees added to your existing Anniversary.
2.4. Payment Method, Credit Card Authorization, No Chargebacks. a) Company accepts payment in the form of ACH submissions, wire transfers and major credit cards as indicated on company invoices. For wire payments or ACH, please submit to the following:
|Beneficiary||46 Labs, LLC|
|Beneficiary Address||1503 E. 19th St. Edmond, OK 73034|
|Beneficiary Account #||309195628|
|Financial Institution||Bank of Oklahoma|
|Financial Institution Swift Code||BAOKUS44|
|Financial Institution ABA/Routing #||103900036|
b) In the event the Customer chooses to pay by credit card, then by signing this Agreement, the Customer is authorizing 46 Labs to charge their credit card for business services. The Customer cardholder acknowledges this authorization is in support of this MSA. Furthermore, the Customer cardholder acknowledges that the credit card authorization is for any card used to pay for services on behalf of Customer, whether that card information is entered into the payment system by the Customer cardholder, an agent of the Customer or by the Company on verbal request of the Customer. Any such authorization is ongoing and valid for the term of the MSA and any renewal terms. In addition, this authorization serves as approval for any prior charges on this, or any previously used, credit card used in payment for services to 46 Labs on behalf of the Customer. The Customer cardholder recognizes that this authorization is not only for monthly service fees, but also for any upgrades or additional services that may be charged to them under the MSA. c) Customer agrees not to chargeback any credit card payments for services rendered. A chargeback of payment for services rendered will result in an additional fee of five hundred dollars ($500.00) and will be subject to collection by an authorized collection agency.
2.5. Payment “Convenience” Fees. Company reserves the right to charge for customer's choice of payment alternative including, but not limited to, charging fees for the use of credit cards, PayPal fees, wire fees or other fees associated with methods of making payment chosen by the customer. These fees may be in addition to any service fees and will be applied at time of invoice.
2.6. One-Time Fees. One-time fees, such as setup fees, administrative fees and late fees are due and payable at the time they are incurred, and/or agreed upon in writing or via ticket with Company’s approval. One-time fees are due and payable upon an invoice following the billing cycle in which they are incurred, and are based on standard rates, or as otherwise agreed upon in writing or via ticket with Company’s approval.
2.7. Refunds & Disputes. All products or services rendered by Company are non-refundable. This includes, but is not limited to: setup fees, one time fees, monthly service fees, upgrade fees, additional service fees, administrative fees, and late fees. Customers seeking to resolve billing errors or disputes are instructed to open an accounting ticket by emailing firstname.lastname@example.org.
2.8. Fee Increases. For those Services provided on a month-to-month term, we may increase fees at any time on ten (10) days advance written notice, provided that we may not increase your fees pursuant to this section more often than once per twelve months nor may we increase your fees by more than ten percent (10%).Notwithstanding the former, the Company may increase service fees during the term, on ten (10) days’ notice to the Customer, if changes to the price of third-party software and services used to deliver the service have resulted in an increase in the cost of the Company to deliver the Service.
2.9. Fees denomination. All fees are stated and will be charged in US Dollars.
3. Taxes All prices and fees specified in or referred to in this MSA are stated exclusive of any tax, including withholding tax, sales, use, value added, levies, import and custom duties, excise or other similar or equivalent taxes imposed on the supply of services. Any taxes, sales, use, levies, excise, withholding taxes or similar charges, direct or indirect, applicable or to become applicable, which are levied as a result of the supply of the services shall be borne by the Customer. Neither party shall be liable for the other party’s taxes based on income. If withholding tax applies to any payments for services made under this MSA, the Customer may withhold that element that is required under the applicable legislation but must pay an additional amount to ensure that the full value of the invoice is remitted and must notify Company prior to payment that withholding tax is required to be paid. The parties undertake to co-operate, where possible, to minimize the amount of withholding tax due by making advance clearance applications under the relevant double taxation treaties (where applicable) to the relevant tax authority to reduce the rate of withholding tax or exempt entirely this amount if applicable. In any event, the Customer undertakes to account for any tax withheld to the tax authorities on a timely basis.
4. Service Level Agreement (“SLA”). If Customer’s Services are unavailable for more than thirty (30) consecutive minutes in any one day, then Company will issue an SLA credit, upon written request from Customer received within fifteen (15) days of such outage. For purposes of this section “service unavailability” or “downtime” shall be defined as the core switching functionality of Services not routing calls OR the Services user interface being inaccessible to the Customer. SLA credit for service unavailability shall be applied in the following manner:
|Services Downtime||SLA Credit|
|< 30 Minutes||No Credit|
|30.01 Min – 6 hours||½ Day Credit|
|6.01 hrs. – 12 hrs.||1 Day Credit|
|Over 12 Hours||2 Days Credit|
4.1. Downtime Calculation. For purposes of this section 4, a day is defined as 1/30th of one month. The SLA credit will be calculated by dividing the number of hours of downtime on a normal day of service and applying it to the downtime chart.
4.2. SLA Credits. SLA credits will be issued to your Customer account and shall be used to offset future billable services. SLA credits shall not be issued as cash back to the Customer nor shall the service credits be transferable to other account holders. SLA credits shall expire if Customer’s account is terminated.
4.3. SLA Credit Limitations. The maximum credit allowed in any given month cannot exceed one SLA credit per day or partial day, or 100% of the monthly service charges billed for Services. An SLA credit will not be issued for service unavailability events caused by the following: (a) negligent acts or omissions of the Customer, or any other issue caused by Customer or its end-users; (b) outages caused by third party carriers or local exchange carriers; (c) the malfunction of equipment, applications, or systems not owned by Company; (d) circumstances or causes beyond the control of Company including but not limited to instances of Force Majeure; (e) scheduled service maintenance, alteration, or implementation; (f) failure of any components that Company cannot correct because Customer has elected not to release services for testing or repair and continues to use the services on an impaired basis, or time attributed to the Customer’s delay in responding to Company’s requests for assistance to repair a service unavailability event; (g) or the Company exercising its discretion to act on abusive use of the services under Section 7.4 .
5.1. Confidentiality / Non-Disclosure Agreement. a) Customer Confidentiality. Unless otherwise addressed in a separately signed Confidentiality and Non-Disclosure Agreement, this Agreement and all of the terms, conditions, and other information herein, are confidential and shall not be disclosed by Customer to any other person, except as may be required by a court or government agency acting in accordance with its jurisdiction. If Customer discloses confidential information to an employee, officer, director, contractor, agent, or consultant, the receiving person will be advised of the confidential and non - disclosable nature of the received information and shall be required to abide by the terms of the Agreement regarding disclosure of the confidential information.
b) Company Confidentiality. Company will not disclose any confidential or proprietary information relating to Customer or its Customer’s business practices which Company learns during the implementation and operation of the Services, without prior approval of Customer; provided that such information is identified by Customer as confidential and or proprietary and Company is advised of the confidential and nondisclosable nature of the received information. If Company discloses appropriately identified confidential or proprietary information to an employee, officer, director, contractor, agent, or consultant, the receiving person will be advised of the confidential and nondisclosable nature of the received information and shall be required to abide by the terms of the Agreement regarding disclosure of the confidential information.
c) Public Information. Confidential information does not include information that is within the knowledge of the public generally through no fault of the receiving party, information which may be obtained by the receiving party from a third party who has no obligation or duty or confidentiality to the disclosing party, and information which is independently developed by the receiving party with no access to or use of the disclosing party’s confidential information.
6. Confidential Customer Proprietary Information, Company Data.
6.1. CCPI Defined. End user information, rates and terms issued to and received from Customers' clients, and those commercial relationships obtained by Company by virtue of its provision of services are considered Confidential Customer Proprietary Information (“CCPI”),
6.2.Security. A Company employee must have a valid log-in identification and password to access a CCPI. CCPI may be disclosed over the phone, via mail or in person to authorized contacts on the Customer’s account. Online access to CCPI is provided in the Subscriber portal which is password protected and password authentication may be done through authorized contacts on the customer’s account. Changes to the customer’s address of record may be done through authorized contacts on the customer’s account, and in such instances, no separate notification of the change(s) will be provided to the customer. CCPI may be disclosed to any person designated by customer, but only upon receipt of a written request for such disclosure and verification of the request by the Company.
6.3. Uses. Company uses, discloses, and permits access to CCPI for the purpose of providing aggregate market data on Services usage and related statistics without Customer approval. Company may share CCPI with any affiliate or third party for purposes of marketing any additional services outside of the category of services to which Customer already purchases from Company.
6.4.Company Data. Notwithstanding anything in Sections 6.1 to 6.4, Company is the owner of all data generated by or stored in the system, including but not limited to call detail records, whether the data was created by the Company's systems or entered by the Customer (the “Company Data”). For the duration of this Agreement, Company grants a license to Customer to use, access, download and copy the Company data solely for the purpose of use in Customer's accounting process, for secure back-ups or legal compliance. Upon termination of this Agreement all license to the Company Data is immediately revoked.
7. Acceptable Use Policy (“AUP”).
7.1. Permitted Use. By accepting the MSA, Customer agrees to use Company’s Services solely for their intended purposes. CUSTOMER SPECIFICALLY AGREES NOT TO TAMPER WITH, MAKE DERIVATIVE WORKS OF, REVERSE COMPILE, REVERSE ENGINEER AND/OR DISASSEMBLE ANY OF COMPANY’S SOFTWARE OR FILES. If Customer violates or exceeds the Permitted Use, Company reserves the right to immediately terminate Customer’s account and will pursue any and all legal remedies available.
7.2. Direct Violations. The following list represents per se direct violations of this AUP and will be subject to immediate redress as set forth herein. Failure to immediately redress these direct violations will result in termination of the Services service. a) Copyright and Trademark Infringement. Direct copyright infringement (as defined and noted under Title 17, Section 512 of the United States Code) and trademark infringement are direct violations of Company’s AUP. b) llegal Use. Any use of dedicated services in a manner which is defined or deemed to be statutorily illegal is a direct violation of Company’s AUP. This includes, but is not limited to: death threats, terror threats, threats of harm to another individual, multi-level marketing schemes, "Ponzi schemes", invasion of privacy, credit card fraud, racketeering, and other common illegal activities. c) Threats & Harassment. The Services network may not be utilized for any type of individual, organizational or business use to administer threats to or harassment of individuals, organizations or businesses. d) Fraudulent Activities. Company prohibits utilizing dedicated services or network services for fraudulent activities. Participation in fraudulent activities is in direct violation of state and federal law and Company’s AUP. e) Legal Compliance. Company will comply with and respond to jurisdictionally valid (as Company determines in its sole discretion) subpoenas, warrants, and/or court orders. If allowed, Company will forward such subpoenas, warrants, and/or orders to Customer and Customer may respond; however, Company reserves the right to respond as long as it is the named party in such subpoena, warrant, and/or order.
7.3. Technical Support Abuse. The Company provides normal support for standard questions and issues through the user interface or by contacting us through e-mail at email@example.com. Our standard hours of operation and support response policies are updated from time-to-time and are available in the support section of the user interface and on our website at www.46labs.com. In addition, we offer emergency 24/hour support through our Emergency Support Line (“ESL”). The purpose of the ESL is to provide our Customers to get in touch with us if they are experiencing a downtime with the switch or the user interface. The Company reserves the right to charge the client a training fee of up to five hundred dollars ($500) per instance if, in its sole discretion, it determines that a customer is abusing the purpose of the ESL by using it excessively for normal support requests, general questions or non-emergency issues.
7.4. Abusive Use/Traffic, Suspension Customer has the responsibility to monitor and control the traffic sent by third-party carriers to Services and the use of the services by its employees, customers, agents and contractors. Company may suspend the Services at its sole discretion and without liability if: (i) it reasonably believes that the Services are being used (or have been or will be used) in violation of the Agreement, (ii) it discovers that Customer is, or is affiliated in any manner with, a person who has used similar services abusively in the past; (iii) Customer does not cooperate with our reasonable investigation of any suspected violation of the Agreement; (iv) Company reasonably believes that the Services have been accessed or manipulated by a third party without Customer's consent, (v) Company reasonably believes that suspension of the Services is necessary to protect our network or our other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect 46 Labs or our other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee upon reinstatement of the Services. Any outage to the Customer caused by the Company exercising its discretion under this section shall not be grounds for an SLA credit to the Customer under Section 4 of this MSA, nor shall the Company be held liable for any damages caused to Customer for acting under this provision.
7.5. Abuse Reporting. Company accepts reports of alleged violations of this AUP via email sent to firstname.lastname@example.org. Reports of alleged violations must be verified and must include the name and contact information of the complaining party, and the IP address allegedly in violation, and description of the violation. Unless otherwise required by law, such as the DMCA, Company owes no duty to third parties reporting alleged violations due to lack of privacy in contract law. Company will review all verified third party reports and will take appropriate actions as Company deems necessary within its sole discretion.
8. Cancellation. Following the Trial Period, the Company requires a written notice of cancellation a minimum of twenty (“20”) days prior to 00:00:01 GMT on the Anniversary Billing Date for discontinuance of services. Notice of written cancellation must be made by email to email@example.com. Failure to supply the requisite twenty (“20”) day written notice of cancellation will result in a full billable cycle prior to cancellation. All data remaining after the cancellation date may be destroyed for security and privacy reasons and will be removed or archived within thirty (30) days, unless otherwise required by law. For purposes of this section, a request for a downgrade in services is treated the same as a cancellation and requires the same notification. Any downgrade in services may result in a change in service pricing from prior negotiated rates.
9.Non-Payment, Late fee, Reconnect Fee. All payments are due in full on the Anniversary Billing Date. Failure to remit payment for services on the Anniversary is a violation of the TOS. Failure to remit payment for three (“3”) consecutive days, including the Anniversary, shall result in a suspension of Customer’s access to Company services, including the Services portal and customer support. Customer acknowledges and agrees that Company may invoice for products and services in accordance with Company’s business policies or procedures. Failure to remit payment for services within seven (“7”) consecutive days, including the Anniversary, shall result in termination of access to Services and all services shall be reclaimed. A late fee of two hundred and fifty dollars ($250), OR two percent (2%) of the current invoice whichever is greater, will be incurred for failure to remit payment for services on or before the monthly Anniversary . All late payments are due before a Customer account will be re-enabled. A one thousand dollar ($1,000) reconnect fee will be incurred for failure to remit payment for services after portal access has been disconnected. All Customer data remaining after seven (7) days of nonpayment may be destroyed for security and privacy reasons, unless otherwise required by law.
10.Data, Data Retention.
10.1. Company agrees to use commercially reasonable efforts when deploying services related to data integrity, backup, security, and retention. These services include, but are not limited to: hard drive storage, raid hard drive arrays, network attached storage, storage area networks, operating system installs, operating system reloads, customer portal information, and other situations involving customer data. Customer assumes ultimate responsibility for CCPI data integrity, retention, security, backup, and ownership. If Customer is involved in any data transfer(s) (whether in connection with its business or otherwise), then Customer must ensure that it complies with any applicable rules, laws, regulations, or the like in any and all applicable regions or countries.
10.2. Company provides online access to historical information for purposes of supporting the Services systems. Unless otherwise required by law, the Company maintains this information within the system for a limited period, sufficient to provide business support to its customers. The amount and duration of available historical transaction information is retained at the sole discretion of the company. This retention policy is updated from time-to- time and is available by email request at firstname.lastname@example.org . .
11.International Data Privacy. Customer is responsible for any processing or international transfer of personal information included in the Customer data and agrees to comply with any rules, laws, regulations or the like in any and all applicable regions or countries in this respect. To the extent personal information is subject to rules, laws, regulations or the like implementing the EU Data Protection Directive 95/46/EC, Company will be considered a "data processor" and will as such act on Customer's instructions and implement security measures in accordance to the TOS and other applicable contracts between parties.
12.Identity Use. Customer agrees to use the Services logo, Services information, and/or related services in accordance with Company’s approved marketing guidelines. Company agrees not to use Customer logos without prior written consent of Customer.
13. LAWS. CUSTOMER AGREES TO ABIDE BY ALL LOCAL, STATE, AND FEDERAL LAWS PURSUANT TO SERVICES DELIVERED IN OKLAHOMA CITY, OKLAHOMA, UNITED STATES OF AMERICA. THIS AGREEMENT IS MADE UNDER AND WILL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OKLAHOMA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. EXCLUSIVE VENUE AND JURISDICTION FOR ANY AND ALL LEGAL REMEDIES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE OKLAHOMA COUNTY, OKLAHOMA CITY, OKLAHOMA. EACH PARTY IRREVOCABLY CONSENTS TO THE FOREGOING JURISDICTION AND VENUE REQUIREMENTS AND WAIVES ANY AND ALL OBJECTIONS TO SUCH REQUIREMENTS.
14. INDEMNIFICATION. CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS COMPANY, COMPANY’S AFFILIATES, AND ITS RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, ATTORNEYS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, FINES, PUNITIVE DAMAGES, AMOUNTS IN INTEREST, EXPENSES AND DISBURSEMENTS OF ANY KIND AND NATURE WHATSOEVER (INCLUDING REASONABLE ATTORNEYS' FEES) BROUGHT BY A THIRD PARTY UNDER ANY THEORY OF LEGAL LIABILITY ARISING OUT OF OR RELATED TO CUSTOMER’S CONTENT, ILLEGAL ACTIVITY AND/OR ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF A THIRD PARTY'S COPYRIGHT, TRADE SECRET, PATENT, TRADEMARK, OR OTHER PROPRIETARY RIGHT.
15. LIMITATION OF LIABILITY. EXCEPT AS DESCRIBED IN THE SLA, COMPANY SHALL NOT BE LIABLE TO CUSTOMER FOR HARM CAUSED BY OR RELATED TO CUSTOMER'S SERVICES OR INABILITY TO UTILIZE THE SERVICES UNLESS CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COMPANY. COMPANY SHALL NOT BE LIABLE TO CUSTOMER FOR LOST PROFITS, INDIRECT, SPECIAL OR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS MSA, THE MAXIMUM AGGREGATE LIABILITY OF COMPANY AND ANY OF ITS EMPLOYEES, MEMBERS, SHAREHOLDERS, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW SHALL NOT EXCEED THE AMOUNT PAID BY THE CUSTOMER FOR SERVICES FOR THE TWO MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM. EXCEPT AS OTHERWISE PROVIDED IN THIS MSA, COMPANY PROVIDES ALL PRODUCTS AND SERVICES “AS IS”, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, OR IMPLIED AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABIILTY OF FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE, AND SUITABILITY OF THE PRODUCT AND SERVICES, AND COMPANY SHALL HAVE NO LIABILITY ASSOCIATED WITH THE FOREGOING. EACH ACTION OR CLAIM OF ANY PARTY ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL BE MADE ONLY AGAINST THE OTHER PARTY AS A CORPORATION, AND ANY LIABILITY RELATING THERETO SHALL BE ENFORCEABLE ONLY AGAINST THE CORPORATE ASSETS OF SUCH PARTY. NO PARTY SHALL SEEK TO PIERCE THE CORPORATE VEIL OR OTHERWISE SEEK TO IMPOSE ANY LIABILITY RELATING TO, OR ARISING FROM, THIS AGREEMENT AGAINST ANY PARENT COMPANY, AFFILIATED COMPANY, SUBSIDIARY, SHAREHOLDER, EMPLOYEE, OFFICER, DIRECTOR, MANAGER OR MEMBER OF THE OTHER PARTY. THE FORGOING LIMITATIONS ARE MATERIAL TERMS TO COMPANY, FOR WHICH IT WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THE INCLUSION HEREOF.
16. Disclaimer of Liability of Acts or Omissions of Others (including Customer). Company shall not be liable for any act, omission to act, negligence, or defect in the quality of service of Customer or any underlying carrier or other service provider whose facilities or services are used in furnishing any portion of the service received by the End-user. Company shall not be liable for any failure of performance that is caused by or the result of any act or omission by Customer or any entity other than Company. Any mistakes, omissions, interruptions, delays, errors, or defects that are caused by or materially contributed to by the negligence or willful acts of Customer, or that arise from facilities or equipment used by Customer and not provided by Company, in whole or in part, shall not result in the imposition of any liability upon Company. Furthermore, Company shall not be liable to any party for any losses incurred due to errors made by Customer when entering or loading information, including, but not limited to, call, carrier, route or rate information rate sheets, IP addresses, NPA/NXX codes, country codes or any other information which is entered by Customer and used by the Services.
17. Pre-Populated Data. Company does provide certain pre-populated data (e.g. LNP, local, LERG data) FOR CONVENIENCE only and does not warrant or guarantee their accuracy. It is Customer’s responsibility to ensure all rates and codes are correct in their Services before utilizing the Services.
18. Ownership of Intellectual Property. Each party retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by 46 Labs during the performance of the Services shall belong to 46 Labs unless the parties have agreed in advance in writing that the Customer shall have an interest in the intellectual property.
19. Settlement of disputes, Litigation, Arbitration. Any controversy or claim arising from service or related to this MSA or breach therein in excess of ten thousand dollars ($10,000.00) shall be settled by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The applicable laws, venue and jurisdiction requirements set forth above in Section 13 apply to any arbitration proceedings. The resulting judgment rendered by a licensed arbitrator may be entered in any court having valid jurisdiction. Otherwise, the parties may seek relief in a competent court in the jurisdiction set forth in Section 13 for any claims less than the amount set forth in this section.
20. Attorney's Fees, Costs and Interest for disputes. Customer is responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees) incurred by Company in enforcing collection of any fee or payment owed under this MSA. In addition, Company shall be entitled to pre-judgment and post judgment interest on any and all subscription fees, late fees, service fees or penalties from the date they were due or incurred at the rate of eighteen percent (18%) annually or the maximum statutory allowable rate whichever is greater.
21. Waiver. Except as otherwise provided in this MSA, no failure or delay by either party to enforce any right or remedy available under this MSA shall constitute a waiver of such right or remedy or a waiver of any other right or remedy.
22. Language. The official language of this MSA shall be the English language and no translation into any other language may be used in its interpretation. All services, support, notices, designations, specifications, and communications will be provided in the English language.
23. Third Party Beneficiary. Except for Customer, Company or an affiliated entity of Company, a person who or which is not a party to this MSA shall have no right to enforce any term of this MSA.
24. Force Majeure. A party is not liable for non-performance or delay in performance of this MSA, other than payment obligations, if the non-performance or delay is due to any occurrence or contingency beyond its reasonable control including but not limited to acts of God, insurrection or civil disorder, war or military operations, national or local emergency, acts of government having general affect, changes of the regulatory environment, industrial disputes of any kind, tsunami, flood, landslide, earthquake, fire, explosion, civil commotion, blockade, terrorism, revolution, sabotage, piracy, epidemic, quarantine restrictions, import or export delays beyond that which is considered reasonable, or defaults of Company’s suppliers or subcontractors due to any of the above causes.
25. Severability. If any provision of this MSA shall be held to be illegal, void, invalid, or unenforceable under the laws of any jurisdiction, the legality, validity, and enforceability of the remainder of this MSA in that jurisdiction shall not be affected, and the legality, validity, and enforceability of the whole of this MSA in any other jurisdiction shall not be affected.
26. Assignment. Company shall have the full right to assign, transfer, and/or subcontract any of its rights and obligations under the MSA. Customer may not assign the Agreement without 46 Labs's prior written consent.
27. Legal Compliance. By accepting this MSA, Customer represents and warrants that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties. Customer further represents and warrants that he/she has full authority and power to execute this Agreement on behalf of the Company he/she represents, if any. Additionally, Customer warrants that he/she is at least eighteen (“18”) years of age or older and are not otherwise legally incapacitated to execute this Agreement.
28. Electronic Signature. Acceptance by Customer of the MSA incorporating the TOS, AUP, SLA, PA, and any applicable addendum hereby initiates billable services and is deemed complete by agreement to the terms as described on the portal entry page and completion of the ordering process. This Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, electronic acceptance of terms, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
29. Contact Information. 46 Labs LLC is an Oklahoma limited liability company. Our registered office and address for correspondence or any notices is: 1503 E. 19th, Edmond, OK 73013 Edmond, OK 73103. You can contact us and provide notices to us by email at email@example.com. You can contact us by telephone on +1 (512) 831-3664.
NOTE: by Logging into the system and establishing a user account, you are acknowledging the terms of this agreement. You further agree that the electronic record indicating your account set-up shall serve as a valid signature on this Agreement whether shown on this document or in another digital record.By signing this agreement and choosing to pay by credit card, you are acknowledging the terms of Section 2.5 regarding credit card authorization of payment