Terms and Conditions of Service
These Terms and Conditions together with the Service Order attached hereto constitute the agreement (“Agreement”) which is effective as of the last date of execution above (“Effective Date”) by and between PAXIO, Inc. (“PAXIO”) and Customer. PAXIO and Customer are collectively referred to as the “Parties” or individually as a “Party”.
1.1 “Commencement Date” means the date upon which PAXIO begins to provide Service.
1.2 “Effective Date” means the last date of execution on the Service Order.
1.3 “Order” refers to Service Order detailing the Services, the Term, Customer charges and any other relevant terms agreed upon by the Parties.
1.4 “Service” means the product or service provided by PAXIO to Customer.
1.5 “Term” means the period of time in which PAXIO provides Services to Customer pursuant to the Order and any renewals thereto.
2.1 Activation Charge. A non-recurring Activation charge (“Activation Charge”) specified will be invoiced upon the Commencement Date and the Customer will pay such invoice within 30 days.
2.2 Installation Charge. A non-recurring installation charge (“Installation Charge”) specified will be invoiced upon the Effective Date and Customer will pay such invoice within 30 days.
2.3 Deposit. A Deposit specified in the Order, is payable upon the Effective Date. This Deposit is a prepayment of Installation or Service and will be assessed against Installation Charges and/or Recurring Charges, as appropriate.
2.4 Recurring Charges. Recurring charges specified in the Order shall begin on the Commencement Date. PAXIO will invoice Customer for and Customer will pay the Recurring Charges in advance for each period and within thirty (30) days from the date of such invoice. Invoices for partial months will be pro-rated. Monthly recurring charges shall increase by 3% at each twelve (12) month interval of the contract.
2.5 Additional Charges. PAXIO will invoice Customer and Customer will pay for any additional charges specified in the Order.
2.6 Applicable Taxes. PAXIO will invoice Customer and Customer will pay any and all applicable taxes (“Applicable Taxes”) as more fully described in Section 3, below, with respect to specific Customer charges.
2.7 Late Payments. All invoices must be paid in accordance with their terms without setoff or deduction, and late payments will accrue interest on the unpaid sum as of the date of the invoice at the lesser of (i) the highest legal rate of interest permitted in the State of California or (ii) one and one-half percent (1.5%) per month.
2.8 Early Termination Charge. If this Agreement is terminated prior to the end of the term, for any reason other than uncured default by PAXIO, Customer shall be invoiced for the remaining recurring charges still outstanding through the end of the Term.
2.9 U.S. Dollars. All payments must be made by Customer to PAXIO in U.S. dollars
3.1 “Applicable Taxes” means all taxes, levies, fees, imposts, duties, charges, surcharges, assessments or withholdings of any kind or nature (collectively “Taxes”) levied or imposed upon PAXIO, arising from or relating to the provision by PAXIO of the Services to Customer (including, without limitation, sales, excise taxes, universal service fees and any other FCC or state PUC fees), together with any penalties, fines or interest (resulting from Customer’s failure to pay Taxes hereunder after being invoiced for such) by any U.S. federal, state, provincial or local government, public authority, including its agencies, commissions and tribunals, having jurisdiction over this transaction. Taxes will be assesses against the total Recurring Charges.
4.1 This Agreement commences on the Effective Date, and continues through the expiration of Order Term, unless earlier terminated as provided herein. Upon expiration of the initial term, the Agreement will automatically renew for additional periods of one (1) month unless one Party provides the other written notice that it is terminating such Order not less than thirty (30) days’ prior to the end of the Term then in effect.
5.1 The following events are “Events of Default”, the occurrence of which gives the non-defaulting Party the right to terminate Agreement for a nonpayment default, by written notice following the expiration of any stated cure periods and pursue its remedies under the Agreement:
5.2 Customer fails to fully pay any of the payments (including Early Termination Charges) required hereunder within five (5) days after receipt of written notice of such failure; or
5.3 Except as provided in clause (a), above, the breach of any material term or condition of this Agreement (including Order) and such breach remains uncured thirty (30) days after delivery to the breaching Party of written notice of such breach. If the breach is of a nature or involves circumstances reasonably requiring more than thirty (30) days to cure, the time period may be extended provided the breaching Party proceeds diligently to cure the breach;
5.4 If Customer is in default, as set forth above, then, after expiration of the cure period, PAXIO may, in addition to any other remedies that it may have under this Agreement or by law, suspend, disconnect and/or repossess any Products or Services, provided, however, that Customer will remain responsible to perform its obligations hereunder.
5.5 PAXIO reserves the right, at no expense to itself, to cancel part of a Service Order before the delivery date with written notice to the customer.
6.1 PAXIO shall deliver Service to the MPOE (minimum point of entry).
6.2 PAXIO warrants that Service provided to Customer will be at a professional level of quality conforming to generally accepted industry standards and in compliance in all material respects with all applicable laws and regulations. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PAXIO DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.3 Each Party represents and warrants to the other that (i) it is duly organized, validly existing and in good standing under the laws of the state of its organization, (ii) it has all requisite power and authority to enter into and perform its obligations under this Agreement, (iii) it will comply with all applicable federal, state and local laws, statutes, rules and regulations in connection with the provision and use of the Products and Services and (iv) this Agreement, when executed, is legal, valid and binding obligation of such Party.
6.4 Customer acknowledges that PAXIO has no ability to determine whether the communications traffic carried by the Products or Services utilizing the PAXIO Network is jurisdictionally interstate or intrastate. Customer represents and warrants that the communications traffic to be carried by the PAXIO Network shall be jurisdictionally interstate, pursuant to the Federal Communications Commission’s mixed-use “10% Rule”(47 CFR 36.154, 4 FCC Rcd. 1352), unless Customer provides PAXIO written notice otherwise. In either case, Customer will pay all relevant FCC and state Public Utilities Commission taxes and fees.
7.1 THE TOTAL LIABILITY OF EITHER PARTY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH AN ORDER (EXCLUDING EARLY TERMINATION CHARGES) IS LIMITED TO AN AMOUNT EQUAL TO THE TOTAL CHARGES PAYABLE BY CUSTOMER DURING THE TERM SET FORTH THEREIN. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OR LOST BUSINESS OPPORTUNITIES (WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY INTERRUPTION OR DEGRADATION OF SERVICE OR OTHERWISE), WHETHER FORESEEABLE OR NOT, EVEN IF A PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY TO CLAIMS OF CUSTOMER, WHETHER OCCASIONED BY ANY CONSTRUCTION, INSTALLATIONS, RELOCATIONS, SERVICE, REPAIR OR MAINTENANCE PERFORMED BY, OR FAILED TO BE PERFORMED BY PAXIO, OR ANY OTHER CAUSE WHATSOEVER, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR STRICT LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA OR TECHNOLOGY.
7.2 PAXIO agrees to indemnify, defend and hold Customer, its officers, directors, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable attorney’s fees and expenses) by reason of any claims or actions by third parties against Customer for (i) bodily injury or death, and damage, loss or destruction of any real or tangible personal property, which third party claims arise out of or relate to PAXIO’s gross negligence or willful misconduct or (ii) infringement or misappropriation by PAXIO of any intellectual property rights under this Agreement.
7.3 Customer agrees to indemnify, defend and hold PAXIO, its officers, directors, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable attorney’s fees and expenses) by reason of any claims or actions by third parties against PAXIO for (i) bodily injury or death or damage, loss or destruction of any real or tangible personal property, which third party claims arise out of or relate to Customer’s gross negligence or willful misconduct, (ii) infringement or misappropriation by Customer of any intellectual property rights under this Agreement, or (iii) Customer’s or its customer’s use of the Products or Services, including without limitation, defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity, or spamming or any other tortious or illegal conduct.
8.1 Each Party agrees that the terms of this Agreement and all information furnished to it by the other Party, including maps, pricing, financial terms, network routes, design information, methodologies, specifications, locations or other information to which it has access under this Agreement, are deemed the confidential and proprietary information or trade secrets (collectively referred to as “Proprietary Information”) of the Disclosing Party and will remain the sole and exclusive property of the Disclosing Party (the Party furnishing the Proprietary Information referred to as the “Disclosing Party” and the other Party referred to as the “Receiving Party”). Each Party will treat the Proprietary Information and the contents of this Agreement in a confidential manner and, except to the extent necessary in connection with the performance of its obligations under this Agreement, neither Party may directly or indirectly disclose the same to anyone other than its employees on a need to know basis and who agree to be bound by the terms of this Section, without the written consent of the Disclosing Party. Information will not be deemed Proprietary Information if it (i) becomes publicly available other than through the actions of the Receiving Party; (ii) is independently developed by the Receiving Party; or (iii) becomes available to the Receiving Party without restriction from a third party. If the Receiving Party is required by a governmental or judicial law, order, rule, regulation or permit to disclose Proprietary Information, it must give prompt written notice to the Disclosing Party of the requirements of suchdisclosure and cooperate fully with the Disclosing Party to minimize such disclosure, and disclosure after such notice shall not be a breach hereof.
9.1 Neither Party will assign this Agreement without the other Party’s prior written consent, except that either Party may assign this Agreement upon notice and without the other Party’s consent to a person, firm, corporation, partnership, association, trust or other entity (i) that controls, is controlled by or is under common control with the assigning Party or (ii) which purchases all or substantially all of its assets; provided that the assignee assumes all liabilities hereunder in writing prior to the effectiveness of such assignment. Any assignment or transfer without the required consent is void and is considered a material breach of this Agreement. Upon any permitted assignment, the assigning Party will remain jointly and severally responsible for the performance under this Agreement, unless released in writing by the other Party, and this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
10.1 Neither party will be considered in breach of this Agreement nor liable under this Agreement for any delays, failures to perform, damages or losses, or any consequence thereof, caused by or attributable to an event of “Force Majeure,” which is defined as any cause beyond the reasonable control of the party claiming relief, including without limitation the action by a governmental authority (such as a moratorium on any activities related to this Agreement or changes in government codes, ordinances, laws, rules, regulations, or restrictions occurring after the Effective Date), third-party labor dispute, flood, earthquake, fire, lightning, epidemic, war, act of terrorism, riot, civil disturbance, sabotage, fiber cut caused by a third-party or failure of a third party to recognize a permit, authorization, right-of-way, easement, right, license or other agreement obtained by PAXIO to construct and operate its facilities or network.
11.1 All notices, including but not limited to, demands, requests and other communications required or permitted hereunder (not including invoices) must be in writing and will be deemed given Customer’s email address as contained on PAXIO’s customer contact record. Such email notification is deemed delivered on the day sent unless returned to sender.
12.1 Governing Law. This Agreement will be interpreted and construed in accordance with the internal laws of the State of California without giving effect to its principles of conflicts of laws. This Agreement and the duties and obligations of the Parties hereunder shall be enforceable against any of the Parties in the courts of California.
12.2 Survival. The Parties’ respective representations, warranties, and covenants, together with obligations of indemnification, confidentiality and limitations on liability will survive the expiration, termination or rescission of this Agreement and continue in full force and effect.
12.3 No Third-Party Beneficiaries. The covenants, undertakings, and agreements set forth in this Agreement are solely for the benefit of and enforceable by the Parties or their respective successors or permitted assigns.
12.4 Relationship of the Parties. The relationship between the Parties hereunder is not that of partners or agents for one another and nothing contained in this Agreement may be deemed to constitute a partnership, joint venture or agency agreement between them.
12.5 Remedies Not Exclusive. Except as otherwise expressly provided, the rights and remedies set forth in this Agreement are in addition to, and cumulative of, all other rights and remedies at law or in equity.
12.6 Headings; Severability. The headings in this Agreement are strictly for convenience and do not amplify or limit any of the terms, provisions or conditions hereof. In the event any term of this Agreement is held invalid, illegal or unenforceable, in whole or in part, neither the validity of the remaining part of such term nor the validity of the remaining terms of this Agreement will be in any way affected.
12.7 No Implied Waiver. No failure to exercise and no delay in exercising, on the part of either Party, any right, power or privilege hereunder will operate as a waiver, except as expressly provided herein.
12.8 Execution and Counterparts. This Agreement may be executed in counterparts, including by facsimile transmission, each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
13.1 This Agreement is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior negotiations, understandings and agreements, whether oral or written. This Agreement may be amended only by a written instrument executed by the Parties.
