MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) sets forth the Terms of Service between KELTIC FISH L.L.C.. (“KELTIC FISH L.L.C.”, “We”, “Us”, “Our”) and You, on behalf of yourself and any entity that You represent (“Customer”, “You”, “Your”), as the user of KELTIC FISH L.L.C.’s business voice, text, video conferencing, and related services and any associated software and hardware (collectively, the “Services”). This Agreement governs Your purchase and use of the Services and equipment subject to the prices, quantities, terms and conditions set forth in You KELTIC FISH L.L.C. Order Form (“Order” or “Order Form”) and any applicable (“Rider”).
Please read this Agreement carefully. It affects the legal rights between the Customer and KELTIC FISH L.L.C. by, among other things: (i) requiring mandatory arbitration of disputes instead of a jury trial, and (ii) limiting KELTIC FISH L.L.C.’s liability. If You do not accept the terms and conditions of this Agreement, do not purchase, or subscribe for or use any Services.
Any and all references on Our packaging, in sponsored advertising, on Our website, in third party marketing materials and/or in any other context or location that refer to the provision of “unlimited” service, shall be narrowly construed as providing the Customer with the ability to make calls within reasonable limits, subject to the Acceptable Use Policy limitations and the other terms and limitations of this Agreement, including payment of the applicable fees.
Pursuant to FCC requirements, KELTIC FISH L.L.C. is required to advise its customers of any limitations that E911 service may have in comparison to traditional 911 service, which are set forth below. If You are having difficulty with the limitations of the KELTIC FISH L.L.C. E911 service, You should consider using an alternative means of access to traditional 911 or E911 services or discontinuing the Services. It is strongly recommended that You have an alternative means for placing emergency calls available at all times.
The following capitalized terms, as used in this Agreement, shall have the meanings set forth below:
“Activation” means when the Customer’s Service is available for Customer’s use.
“Activation Date” means the date Services are made active and available for Customer’s use.
“Affiliate(s)” means, with respect to a Party, any entity that Controls, is Controlled by or is under common Control with the entity. “Control,” for purposes of this definition, means the direct or indirect ownership or control of more than fifty percent (50%) of the voting equity of the subject entity.
“Applicable Laws” means any and all applicable federal, state or local laws, rules or regulations, including, but not limited to applicable restrictions concerning call recording, call monitoring, call interception and/or direct marketing or telemarketing.
“AUP” means the KELTIC FISH L.L.C. Acceptable Use Policy set forth in KELTIC FISH L.L.C..com.
“Customer Equipment” means all equipment owned, leased or otherwise provided by, or which is specifically identified in one or more Order Forms as Customer Equipment, used in connection with the Services.
“Customer Premises” means the physical location(s) owned or leased by Customer where Services are provided or KELTIC FISH L.L.C. Equipment will be used or stored.
“Equipment Rental Agreement” means the written agreement between the parties by which Customer leases KELTIC FISH L.L.C. Equipment from KELTIC FISH L.L.C..
“Service” or “Services” means products or services provided or made available by KELTIC FISH L.L.C. to Customer that are set forth in an Order Form.
“Service Term” or “Term” means the period of time (commencing upon the Activation Date) during which KELTIC FISH L.L.C. provides Services to Customer.
“Software” means proprietary software (including documentation relating to such software) owned or licensed by KELTIC FISH L.L.C., or which KELTIC FISH L.L.C. has a right to sublicense under this Agreement, which software is either provided to Customer under this Agreement or is used by Customer in connection with the Services.
“Taxes and Fees” means any taxes and fees arising in any jurisdiction imposed on or incident to the provision, sale or use of Service and KELTIC FISH L.L.C. Equipment, including value-added, sales, use, gross receipts, excise, franchise, public utility or other taxes, fees, duties or surcharges (including universal service, 911 and other regulatory fees and surcharges), whether imposed on KELTIC FISH L.L.C. or a KELTIC FISH L.L.C. Affiliate.
“KELTIC FISH L.L.C. Equipment” means all equipment that is used, leased or otherwise provided by KELTIC FISH L.L.C. to Customer for use in connection with the Services, including phone hardware (e.g., phones, routers, switches and battery backup). KELTIC FISH L.L.C. Equipment does not include Customer-owned hardware or equipment or hardware and equipment that Customer purchases through KELTIC FISH L.L.C..
2. Sales Agreement
Services will be described in an “Order Form” or an applicable “Rider” that shall include: (i) the price, location, and other information about the Services; (ii) the details relating to equipment being offered for sale or lease to Customer; and (iii) if applicable, associated installation, maintenance, shipping or delivery requirements.
3. Terms, Conditions and Policies
These Terms incorporate and include addenda and policies that are set forth in an addendum, schedule, exhibit, amendment or Rider to an Order Form or this Agreement (collectively, the “Terms”). These Terms supersede and replace all terms and conditions set forth in any documents issued by Customer, including purchase orders and specifications. KELTIC FISH L.L.C. reserves the right to change any of the Terms at any time, but only on a prospective, not retroactive, basis. Notice will be provided to You via the website in the form of a new MSA, as posted on KELTIC FISH L.L.C..com.
4. Service Level Agreement
KELTIC FISH L.L.C. guarantees a 99.99% Service availability. A Service Outage is defined as the complete unavailability of all Services during any unscheduled period of time except that KELTIC FISH L.L.C. is not responsible for failure to meet performance objectives for any of the following reasons which shall not be deemed a Service Outage (collectively, “Exclusions”): (i) Any Service Outage for which Customer may have previously obtained credit or compensation outside the terms of this SLA; (ii) Actions, failures to act or delays by Customer or others authorized by or acting on behalf of Customer to use the Services; (iii) Failure of power, equipment, services or systems not provided by KELTIC FISH L.L.C. including, but not limited to, other providers’ networks and interconnections to or from and connectivity with other service providers’ networks;( iv) Customer owned or leased equipment or facilities (e.g., Customer’s router or local area network); (v) Failure of Customer to afford KELTIC FISH L.L.C. or its agents access to the premises where access lines associated with the Services are terminated; (vi) Election by Customer not to release the Services for testing and/or repair during which time Customer continues to use Services; (vii) Maintenance activities (including planned and emergency) as set forth in the SLA; (viii) Implementation of a Customer order that requires Services interruption; (ix) Failure to report a Service Outage to KELTIC FISH L.L.C. or reporting of a trouble where no trouble was found; (x) Labor difficulties, governmental orders, civil commotion, acts of God, and other circumstances beyond KELTIC FISH L.L.C. ’s reasonable control; and(xi) Failure of equipment or systems responsible for network measurements. If Service availability is less than the percentage guaranteed, a credit shall be applied to Your account based upon a proration of the percentage of downtime. Service outages must be reported to KELTIC FISH L.L.C. during the outage in order to obtain credit. Failure to maintain the Service availability guarantee for four consecutive months shall entitle the customer to cancel service with no termination penalties
At no cost to KELTIC FISH L.L.C., the Customer shall provide KELTIC FISH L.L.C., all permissions, consents or authorizations necessary to activate, maintain, inspect, and repair the products and/or Services and any KELTIC FISH L.L.C. Equipment, including (if applicable) the right to access and enter Customer’s Premises.
6. High-Speed Internet Connection Required
Customer understands, acknowledges, and agrees that: (i) Customer must have a high-quality high-speed Internet connection to use the Services; and (ii) KELTIC FISH L.L.C. is not providing an Internet connection for Customer unless specified in the Order.
KELTIC FISH L.L.C. does not control and is not responsible for: (i) Customer’s Internet connection; (ii) the quality of Customer’s Internet connection; (iii) any third-party products and/or services related to Customer’s Internet connection; or (iv) problems with the Services that are caused by or related to Customer’s Internet connection. KELTIC FISH L.L.C. will not contact any of the Internet providers and/or service or product providers on Customer’s behalf.
Customer understands and acknowledges that Activation of the Services may require the use of certain Customer Equipment and/or KELTIC FISH L.L.C. Equipment.
Customer Equipment. Customer represents that it owns or otherwise has the right to use the Customer Equipment in connection with the Services. Customer shall be fully responsible for the installation, maintenance, repair and operation of any Customer Equipment. KELTIC FISH L.L.C. shall not be responsible for ensuring compatibility of any Customer Equipment with KELTIC FISH L.L.C. Equipment.
(i) Equipment may not be returned to KELTIC FISH L.L.C. for any reason. ALL EQUIPMENT SALES ARE FINAL. Equipment sold by KELTIC FISH L.L.C. to Customer may be returned to the manufacturer solely in the event of a defect which arises within the applicable warranty period. Prior to returning the equipment, Customer must contact KELTIC FISH L.L.C. so that KELTIC FISH L.L.C. may determine whether a defect exists, to process a warranty claim on behalf of Customer. You must ship the equipment to the address provided by KELTIC FISH L.L.C.. You have ten (10) days after receipt of an RMA to ship the equipment (if applicable). You must pay all shipping fees. Once the equipment is received, the original equipment manufacturer will handle the return in accordance with its applicable warranty policy.
• KELTIC FISH L.L.C. Equipment. Customer will not: (i) relocate, rearrange, repair or otherwise modify any KELTIC FISH L.L.C. Equipment without KELTIC FISH L.L.C.’ prior written consent; or (ii) create or allow any liens or other encumbrances to be placed on any KELTIC FISH L.L.C. Equipment.
1. a) Customer will use commercially reasonable efforts to protect and maintain KELTIC FISH L.L.C. Equipment in a secure location at the Customer Premises within conditions (including room temperature) that are customary and reasonable for such equipment, and shall be fully liable for all costs, charges or expenses associated with damage to or loss of KELTIC FISH L.L.C. Equipment beyond normal wear and tear.
1. b) During the Term of any applicable Service, KELTIC FISH L.L.C. shall repair or replace defective KELTIC FISH L.L.C. Equipment leased by Customer pursuant to an Equipment Rental Agreement in accordance with, and subject to the terms set forth in the Equipment Rental Agreement. Notwithstanding the foregoing, KELTIC FISH L.L.C. shall not be obligated to replace KELTIC FISH L.L.C. Equipment if it is determined by KELTIC FISH L.L.C. that Customer or another third party is responsible for the defect.
1. c) KELTIC FISH L.L.C. Equipment (and replacements) may be refurbished equipment.
1. d) Upon cancellation or termination of this Agreement or any Service, Customer shall securely pack, ship and return to KELTIC FISH L.L.C. all KELTIC FISH L.L.C. Equipment at Customer’s expense. KELTIC FISH L.L.C. may invoice Customer, and Customer shall pay, for the full replacement value of any KELTIC FISH L.L.C. Equipment that has not been timely returned to KELTIC FISH L.L.C. in accordance with the terms of the Equipment Rental Agreement.
• Non-Exclusive License.If Software is provided by KELTIC FISH L.L.C. in connection with Services, KELTIC FISH L.L.C. grants to Customer a personal, limited, revocable, non-exclusive, non-assignable and non-transferable license to use the Software, in object code form only, solely for the purpose of using the Service(s). This license will permit such use by Customer and any of its employees or contractors (but only within the scope of their employment or services with Customer) authorized by Customer to use the Service, provided that Customer shall be responsible for all uses of the Service as provided in this Agreement. This license commences upon KELTIC FISH L.L.C.’s acceptance of the Order Form for the Service and terminates immediately upon the expiration or termination of this Agreement for any reason. Customer shall return or destroy all Software and any related written material, together with any copies, in its possession or under its control promptly upon the expiration or termination of this Agreement for any reason. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this license is void and may result in termination by KELTIC FISH L.L.C. of this Agreement and the license. No other licenses or rights to the Software are granted or implied.
8.2 Upgrades and Modifications. KELTIC FISH L.L.C. reserves the right to upgrade the Software or discontinue support for earlier versions of the Software at any time.
8.3 End User Licenses. Certain Software KELTIC FISH L.L.C. provides to Customer may contain third-party software (“Third-Party Software”), including open-source software. Use of such Third-Party Software may be governed by separate copyright notices and license provisions, which may be found or identified in documentation or on other media delivered with the Third-Party Software and which are incorporated by reference into this license. Notwithstanding any other terms in this Section, such provisions shall govern the use of Third-Party Software. Customer agrees to comply with the terms and conditions of all end user license agreements accompanying any Software (including Third-Party Software) or plug-ins to such Software distributed in connection with the Service. All end user licenses shall immediately terminate on the date that the Service expires or this Agreement is terminated.
8.4 Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software. The Service(s), KELTIC FISH L.L.C. Equipment and Software and all information, documents and materials on KELTIC FISH L.L.C.’s website(s) are protected by trademark, copyright, patent and other intellectual property laws and international treaty provisions. All website content, corporate names, service marks, trademarks, trade names, logos and domain names of KELTIC FISH L.L.C. are and shall remain the exclusive property of KELTIC FISH L.L.C. or its Affiliates and nothing in this Agreement shall grant Customer the right or license to use any of the foregoing. Customer agrees that the KELTIC FISH L.L.C. Equipment is exclusively for use in connection with the Service and that KELTIC FISH L.L.C. will not provide any passwords, codes or other information or assistance that would enable Customer to use the KELTIC FISH L.L.C. Equipment for any other purpose. If Customer decides to use the Service through an interface device not provided by KELTIC FISH L.L.C. (which KELTIC FISH L.L.C. reserves the right to prohibit in particular cases or generally), Customer warrants and represents that it possesses all required rights, including software and/or firmware licenses, to use that interface device with the Service and Customer will indemnify, defend and hold harmless KELTIC FISH L.L.C. from and against any and all liability arising out of Customer’s use of such interface device with the Service. Customer may not undertake, cause, permit or authorize the modification, creation of derivative works, or translate, reverse compile, disassemble, hack or reverse engineer, or otherwise attempt to derive the source code from the binary code of the Software.
9. Service Term and Service Cancellation
9.1 Service Term. The term of this Agreement is for a period as defined in the Order Form beginning on the Activation Date and will remain in full force and effect for the term of the as specified on Your Order Form and any renewal terms. At the end of the Initial Term as set forth in Your Order Form, Your Service will automatically renew for successive periods of Eighteen (18) months unless this Agreement is properly terminated as set forth herein. KELTIC FISH L.L.C. reserves the right to reject any Order Form in its sole discretion.
9.2 Termination. You may cancel any Renewal Term by sending written notice to KELTIC FISH L.L.C. of Your intent to not renew the Service at least sixty (60) days prior to the expiration of the current term (excluding Month-to-Month contracts). Month-to-Month contracts must be cancelled a minimum of 30 days in advance by sending written notice to KELTIC FISH L.L.C.. In the event that You terminate Service prior to the end of Your Service term or if KELTIC FISH L.L.C. terminates Your Service for non-payment, in whole or in part prior to the end of Your Service term (except as otherwise permitted in this Agreement), You will be liable for an early termination fee calculated as: One hundred (100%) percent of Your MRC and NRC for the Service multiplied by the remaining months of Your Service term, which is to be paid within thirty (30) days of termination. Notwithstanding the foregoing, in the event of an early termination of Service, You will be responsible for all costs incurred by KELTIC FISH L.L.C. in processing the Service, and all provisioning-related and/or installation-related costs incurred for the required Equipment and facilities up to the date of termination (including but not limited to any termination/cancellation charges KELTIC FISH L.L.C. may be required to pay third parties due to the Service termination). In addition, upon early termination, if installation or NRCs were waived, those charges may be charged back to You. The parties agree that the early termination fees for Service stated herein are: 1) reasonable, 2) are a fair estimation of KELTIC FISH L.L.C. ’s potential damages as of the date of the Agreement’s execution, and 3) are not a penalty.
10. Billing, Credit, Deposits and Payment
• Billing and Payment Processing. You will be billed by KELTIC FISH L.L.C. for the Service, on a monthly basis, for the Monthly Recurring Charges (“MRCs”), Non-Recurring Charges (“NRCs”), and Hourly Services, as provided in the applicable Order Form, in arrears for the prior month’s activity. Customer agrees to pay KELTIC FISH L.L.C. the MRCs, NRCs, Taxes and Fees, set-up charges and usage charges, if applicable, for Customer’s use of the Services. Billing will commence on the Activation Date. Customer agrees to provide KELTIC FISH L.L.C. with a valid accounts payable contact name, phone number, email address, billing address and Federal Tax ID prior to activation of Service. Customer shall advise KELTIC FISH L.L.C. immediately if Customer’s Company Contact email addresses change and/or if the payment method changes or expires. Failure to comply may result in the immediate suspension or termination of Services.
• Payments via Credit Card or ACH.Until Customer cancels the Services in accordance with the requirements of this Agreement, Customer authorizes KELTIC FISH L.L.C. to: (a) automatically bill the credit card Customer provided on the same day of each month; or (b) automatically debit (charge) Customer’s checking account electronically via ACH on the same day of each month. “ACH” shall mean the automated clearing house, which is the nationwide network of banking institutions that process electronic payments automatically between bank accounts. Customer agrees that KELTIC FISH L.L.C. may receive updated information about Customer’s account from the financial institution issuing Customer’s credit card.
• Payment of Invoices. Invoices are delivered monthly. Fees may include monthly recurring charges (“Service Fees”), intellectual property recovery fees (“RCIP”), and government mandated pass-through fees such as, but not limited to, Universal Service Fees (“USF”), e911 fees and regulatory compliance (collectively, “Fees”). All usage-based charges including international calls are due and payable in arrears on the due date of the billing period following the month they were incurred. Customer agrees to pay for all equipment as the equipment order is processed and set up fees upon acceptance of the Order Form. Failure to pay in full may result in immediate account suspension and KELTIC FISH L.L.C. shall have no liability for such suspension under any circumstances. Accounts will be reactivated, at KELTIC FISH L.L.C.’s sole discretion, after the account balance is paid in full and a Fifty Dollar ($50.00) reconnect fee is paid. Past due amounts bear interest at the lower of 5% per month or the maximum rate allowed by law. All fees and charges (together, “Service Fees”) and any other amounts due to KELTIC FISH L.L.C. may, at Customer’s direction, be charged to Customer’s Visa, MasterCard, American Express or valid debit card, and/or electronically debited to Customer’s bank account, in which case Customer hereby authorizes KELTIC FISH L.L.C. to charge Customer’s credit/debit card and/or to electronically debit Customer’s bank account for all such fees, charges (including termination-related charges), taxes and payment transaction processing costs. Customer acknowledges that pre-paid credit cards are not accepted and agrees not to provide pre-paid credit cards as a payment method.
10.4 Suspension of Services. Failure to pay in full may result in immediate suspension of Services and KELTIC FISH L.L.C. shall have no liability for such suspension under any circumstances. During any period of suspension, Services and features and functions of the Services (including, but not limited to call recording service and any other service KELTIC FISH L.L.C. is providing) will be unavailable to Customer until the account balance is paid in full. Customer will be unable to record calls or access any data or recordings that have previously been stored by KELTIC FISH L.L.C..
10.5 Disputes. ALL PAYMENTS TO KELTIC FISH L.L.C. ARE NON-REFUNDABLE. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount and submit written notice of the disputed amount (with details of the nature of the dispute and the Services and invoice(s) disputed) to the address below on or before the due date. In the event Customer intends to dispute amounts already paid in full, Customer must submit notice of such dispute in writing within seven (7) days from the date of the invoice (such date at the end of such period being the “Dispute Due Date”). After receipt of notice of the dispute, KELTIC FISH L.L.C. shall undertake an investigation of the dispute, so long as Customer has not waived its rights pursuant to this paragraph to make the dispute. At the conclusion of the investigation, KELTIC FISH L.L.C. will notify Customer of any amount determined by KELTIC FISH L.L.C. to be correctly charged and such amount will become immediately due and payable together with interest from the date originally due. If the dispute notice is not sent by the Dispute Due Date, Customer waives all rights to dispute the applicable charges, unless otherwise provided by law. All billing disputes must be sent to:
KELTIC FISH L.L.C.
Accounts Receivable Department
4 Parklane Blvd. Ste 312
Dearborn, MI 48126
If Customer does not deliver full payment for all undisputed billed charges by the due date, KELTIC FISH L.L.C. may restrict, suspend or terminate use of the Services or KELTIC FISH L.L.C. Equipment. Customer shall also reimburse KELTIC FISH L.L.C. for all actual attorneys’ fees and other costs incurred by KELTIC FISH L.L.C. relating to collecting delinquent payments or Customer’s non-payment breach of this Agreement. If KELTIC FISH L.L.C. restricts, suspends or terminates Customer’s Services, KELTIC FISH L.L.C. may, at its sole option, choose to restore Customer’s Services prior to the payment of all charges due. Such restoration shall not be construed as a waiver of KELTIC FISH L.L.C.’s right to (i) receive full payment for all charges due or (ii) again restrict, suspend or terminate the Services at any time for non-payment of any unpaid charges. The failure of KELTIC FISH L.L.C. to restrict, suspend or terminate the Services for non-payment of any charges shall not operate as a waiver or estoppel to restrict, suspend or terminate Services of such account for non-payment of current or future charges.
10.6 Additional, Unrelated Charges. Customer acknowledges that Customer may incur charges while using the Service in addition to those billed by KELTIC FISH L.L.C.. For example, Customer may incur charges as a result of accessing certain online services or purchasing or subscribing to certain other offerings. Customer agrees that all such charges, including all applicable taxes, are the sole responsibility of Customer, and Customer covenants to timely pay all such charges.
11. Taxes and Fees.
KELTIC FISH L.L.C. prices for Services do not include Taxes and Fees and Customer is responsible for these charges. Customer may also be charged taxes by an Authorized Distributor for non-KELTIC FISH L.L.C. products and services sold or licensed by that Authorized Distributor in connection with Customer’s order for KELTIC FISH L.L.C. Services. In addition, a regulatory recovery fee to Customer’s account will be charged monthly to offset costs incurred by KELTIC FISH L.L.C. in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and related legal and billing expenses. This recovery fee may also include recovery of costs for legal, intellectual property, cybersecurity, compliance and other related expenses, including those related to number portability, customer privacy protection and anti-fraud protection. This fee is not a tax or charge required or assessed by any government and may be recovered by KELTIC FISH L.L.C. through imposition of a surcharge on cost of the Service. Customer may present KELTIC FISH L.L.C. with an exemption certificate eliminating Customer’s and KELTIC FISH L.L.C.’s liability to pay certain Taxes and Fees. If any amounts paid for the Services are refunded by KELTIC FISH L.L.C. or Authorized Distributor, applicable taxes may not be refundable.
12. Money Back Guarantee (APPLICABLE TO VOICE SERVICEONLY)
KELTIC FISH L.L.C. offers a 10-day Money Back Guarantee. Under terms of this Money Back Guarantee, You must do all of the following in order to receive a refund: 1) cancel service within the first 10 days after the account activation; 2) must return all Equipment within 7 days after cancellation; 3) all Equipment must be in working order of which KELTIC FISH L.L.C. reserves the sole right to determine the working order of the Equipment; and 4) (FOR LEASED EQUIPMENT ONLY) all Equipment must have the UPC, Serial Number, or Bar Code intact 5) FOR PURCHASED EQUIPMENT ONLY – this Equipment is non-refundable unless specified in writing by KELTIC FISH L.L.C..
13. Regulatory and Legal Changes
KELTIC FISH L.L.C. may discontinue, limit, modify any Service, or impose additional requirements to the provision of any Service, as may be reasonably required to comply with any Applicable Laws. If changes in Applicable Laws materially and adversely affect delivery of Service (including the economic viability thereof) or would impose further compliance requirements, then KELTIC FISH L.L.C. will provide notice to Customer to the extent that said changes impact Customer’s obligations and details of regulatory changes.
14. Use of the Services
Customer shall use the Services only in a manner that fully complies with all Applicable Laws, as well as the terms and conditions of this Agreement. Use of the KELTIC FISH L.L.C. Equipment, the Services or other action that is in violation of this Agreement or that causes a disruption in the KELTIC FISH L.L.C. network integrity, or in KELTIC FISH L.L.C.’s determination threatens or compromises the security of KELTIC FISH L.L.C., its vendors, its other customers or the Services whether directly or indirectly, is strictly prohibited and permits KELTIC FISH L.L.C. to suspend or terminate the Services without prior notice at the sole discretion of KELTIC FISH L.L.C. and further permits KELTIC FISH L.L.C. to disclose any relevant information, including Customer Confidential Information, to necessary authorities or third parties. KELTIC FISH L.L.C. shall have the right, in its sole, but reasonably exercised discretion, not to accept, transmit or deliver any messages or content that it reasonably believes contains inappropriate content or that is, or could reasonably become, the subject of any legal, regulatory, or other governmental proceeding or process, including a law enforcement proceeding, process, or inquiry.
15. Service Use Restrictions
• Commercial Use.Customer agrees and represents that Customer is purchasing the Services and/or the equipment for Customer’s internal use only, and Customer shall not resell, transfer or make a change to the Services without the advance express written permission of KELTIC FISH L.L.C.. Customer shall not in any way interfere with other users, the services or equipment of the network or use the Services in any way for (or as part of) any commercial service or application. Customer may not attempt to, in conjunction with any device, software program or service, circumvent technological measures employed to control access to the Service.
• Fair Use. KELTIC FISH L.L.C.’s business service plans and features are for normal, reasonable business use and consistent with the types and levels of usage by typical customers on the same business calling plan. “Typical” refers to the calling patterns of at least 95% of KELTIC FISH L.L.C.’s business customers on the same business calling plan. Certain calling and messaging plans, including unlimited calling and messaging plans, are designed for normal commercial use and are not intended to represent typical usage by unique organizations such as call centers, resellers, fax messaging services, telemarketing firms, or for use without live dialog, such as transcription services, intercom or monitoring services. Unauthorized or excessive use beyond that normally experienced by typical, similarly situated business customers may cause extreme network capacity and congestion issues and interfere with KELTIC FISH L.L.C.’s network and the third-party networks with which KELTIC FISH L.L.C. connects for call initiation and completion services. Any use of the Services or any other action that causes a disruption in the network integrity of KELTIC FISH L.L.C. services or its vendors, whether directly or indirectly, is strictly prohibited and may result in termination of the Services.
15.3 Evaluation of Usage. KELTIC FISH L.L.C. evaluates Customer usage in comparison to typical levels of permissible usage engaged in by KELTIC FISH L.L.C.’s customers (business use under business service plans or affiliate use under co-branded business service offers or business plans). Co-branded use is defined as KELTIC FISH L.L.C.’s service that is provided by a third-party partner under that third party partner’s marketing brand, with or without reference to KELTIC FISH L.L.C.. The following is a non-exhaustive list of impermissible uses under KELTIC FISH L.L.C.’s business plans and is considered outside of normal use, whether obtained directly from KELTIC FISH L.L.C., an authorized reseller, or from a co-branded KELTIC FISH L.L.C. partner:
1. Resale to others (unless authorized by KELTIC FISH L.L.C. in writing);
2. Auto-dialing or fax/voice blasts;
3. Without live dialog, including use as a monitor or for transcription purposes;
2. Continuous or extensive call forwarding;
3. Continuous connectivity;
6. Constant dialing;
7. Iterative dialing;
8. Fax broadcast;
9. Fax blasting; and
10. Telemarketing involving practices that are in violation of any law or regulation or any other activity that would be inconsistent with small business usage.
15.4 Review of Unlimited Usage. KELTIC FISH L.L.C. reserves the right to review usage of unlimited usage plans to ensure that customers are not abusing such plans. Customer agrees to use unlimited voice plans for normal voice and/or text message related communications with aggregate usage that falls within the range of similarly situated business customers. Customer will not employ methods or use devices to take advantage of unlimited plans by using the Services excessively or for means not intended by KELTIC FISH L.L.C.. KELTIC FISH L.L.C. may terminate service immediately if it determines, in its sole discretion, Customer is abusing an unlimited minute plan. KELTIC FISH L.L.C. deems usage that substantially exceeds the average volume of its other unlimited usage plan customers as abusive. Customer agrees that KELTIC FISH L.L.C. has the right to terminate Customer’s service and/or charge Customer additional fees if Customer’s usage is considered abusive in the sole discretion of KELTIC FISH L.L.C..
15.5 Excessive Usage. If it is determined that Customer’s usage is abusive, Customer agrees to pay a per minute, per text message, or per page fee for use in excess of typical levels at the then current rate established by KELTIC FISH L.L.C., of at least .01 per minute for voice calls or fax pricing is not unlimited, as specified in the Order. At KELTIC FISH L.L.C.’s sole option, Customer’s service may be immediately terminated.
THIS OVERAGE FEE APPLIES TO ALL PLANS INCLUDING THE UNLIMITED PLANS. A Customer’s aggregate usage may be considered outside of normal use if involves excessive:
1. Number of calls made to a conference calling service during a month;
2. Number of calls terminated and re-initiated consecutively, which, in the aggregate, result in excessive call lengths during a specific time frame;
3. Number of text messages;
4. Number of inbound domestic toll-free calling patterns during a month; or
5. Other abnormal calling patterns indicative of an attempt to evade enforcement of this Reasonable Use Policy
Based on such a combination, KELTIC FISH L.L.C. may determine that abnormal, unreasonable or impermissible usage is occurring when compared to typical customers on the same calling plan, and may take appropriate steps described below to enforce this Agreement, as well as the Terms of Service. If, in KELTIC FISH L.L.C.’s sole discretion, KELTIC FISH L.L.C. affords Customer the opportunity to correct Customer’s abnormal usage patterns and Customer fail to immediately conform to normal use, KELTIC FISH L.L.C. may exercise its right to transfer Customer’s service to a more appropriate plan, charge applicable rates for that plan, implement other limitations or suspend or terminate Customer’s service with or without notice.
15.6 Prohibited Use of the Services. Customer may not use any automated means to manipulate Our Service or use Our Service to violate any law, rule, regulation or any third-party’s intellectual property or personal rights. By way of example, Customer shall not use Our Service or Our device to:
1. Impersonate another person;
2. Send bulk unsolicited messages;
3. Use robots, data mining techniques or other automated devices or programs to catalog,
4. Download, store or otherwise reproduce or distribute information from Our Service or use any automated means to manipulate Our Service;
5. Violate any law, rule or regulation;
6. Violate any third party’s intellectual property or personal rights; or
7. Exceed Customer’s permitted access to Our Service.
KELTIC FISH L.L.C. may remove or block all communications if KELTIC FISH L.L.C. suspects a violation of this Agreement, or if KELTIC FISH L.L.C. thinks it necessary in order to protect KELTIC FISH L.L.C.’s Service, or KELTIC FISH L.L.C., its parent, affiliates, directors, officers, agents, and employees from harm.
15.7 For Lawful and Appropriate Purposes Only; KELTIC FISH L.L.C.’s Rights. Customer may not use Our Service or devices in any way that is illegal, improper or inappropriate. The following is a non-exhaustive list of examples of illegal, improper, or inappropriate uses of Our Service and or devices:
6. Deceptive; and
7. Invasive of another’s privacy or any similar behavior
16. Fraudulent Use of Service
Customer shall bear the risk of loss and assume all liability arising from prohibited, unauthorized or fraudulent use of Services. Any such prohibited, unauthorized or fraudulent use shall be deemed a material breach of the Agreement by Customer. Customer is responsible to secure all credentials used to access the Services, including credentials used by telephones or softphones and credentials used by end users or administrators, as well as the media access control (MAC) address of telephones used by Customer. Customer acknowledges that placing telephones on a publicly accessible Internet protocol address or a publicly accessible network will subject the Customer to a higher level of risk for fraudulent activity. Customer shall not be excused from paying for Services or any portion thereof on the basis that fraudulent calls, and any charges associated with such calls (e.g. long-distance charges), comprised a corresponding portion of the Services. In the event KELTIC FISH L.L.C. discovers fraudulent calls being made, Customer consents to KELTIC FISH L.L.C. taking actions it deems reasonably necessary (including blocking access to particular calling numbers or geographic areas), without notice to Customer, to prevent such calls from taking place. Customer acknowledges and agrees that KELTIC FISH L.L.C.: (a) is under no obligation to investigate the authenticity of calls charged to Customer’s account, (b) is under no obligation to take action to prevent such calls from being made, and (c) is not liable for any fraudulent calls processed by KELTIC FISH L.L.C. and billed to Customer’s account.
17. No Resale
Customer represents and warrants that it will be the ultimate end user of the Service. Customer shall not in any way resell, license, permit or allow any third party to use the Services without receiving KELTIC FISH L.L.C.’s prior written consent.
18. Third-Party Networks
19. Required Maintenance
KELTIC FISH L.L.C. reserves the right to perform repair and maintenance or to upgrade, update or enhance (collectively, the “Maintenance”) its network, infrastructure, website(s), Services and/or KELTIC FISH L.L.C. Equipment with or without prior notice or liability to Customer, even if the Maintenance causes a partial or full disruption of the Services; provided, however, and subject to KELTIC FISH L.L.C.’s business needs, KELTIC FISH L.L.C. shall use commercially reasonable efforts to perform the Maintenance in a manner so as to avoid unduly interfering with Customer’s use of the Services, including by providing reasonable commercial notice where feasible. Where possible, KELTIC FISH L.L.C. will use commercially reasonable efforts to communicate advanced written notice to You of planned maintenance events.
20. Default and Remedies
20.1 Customer Default. If Customer either (a) fails to make any payment when due and such failure continues for five (5) business days after written notice from KELTIC FISH L.L.C., or (b) fails to observe or perform any other material term of this Agreement and such failure continues for thirty (30) days after written notice from KELTIC FISH L.L.C., then KELTIC FISH L.L.C. may elect to do any of the following (not as an election of remedies): (i) accelerate the entire amount of remaining MRC owing under the Order, (ii) terminate this Agreement and/or any Order Form, in whole or in part; (iii) immediately suspend Customer’s Service, in whole or in part; and/or (iv) pursue all remedies KELTIC FISH L.L.C. may have at law or in equity.
20.2 Suspension of Services. Notwithstanding any other provision of this Agreement, KELTIC FISH L.L.C. may suspend Customer’s right to access or use any portion or all of the Service immediately and without liability to Customer in any of the following circumstances: (i) Customer’s use of the Service violates and Applicable Laws or the AUP; (ii) KELTIC FISH L.L.C. is legally required to suspend or terminate Service; (iii) Customer’s use of the Service poses a security risk to the Service or any third party or may subject KELTIC FISH L.L.C. or any third party to liability; (iv) the occurrence or threat of any other event or circumstance for which KELTIC FISH L.L.C. reasonably believes that suspension of Service is necessary to protect the KELTIC FISH L.L.C. (or other third-party) network, systems or customers; or (v) Customer’s failure to make payment.
21. Right to Terminate or Modify Services
KELTIC FISH L.L.C. may modify the Services, including but not limited to the price, content or nature of the Services, upon written notice to Customer. Customer’s continued use of the Services constitutes Customer’s agreement with the modified Services.
22. Warranty Disclaimer
KELTIC FISH L.L.C. PROVIDES THE SERVICES, EQUIPMENT AND SOFTWARE ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND (EXCEPT FOR ANY THIRD-PARTY MANUFACTURER WARRANTIES THAT MAY BE APPLICABLE TO EQUIPMENT PURCHASED BY CUSTOMER FROM KELTIC FISH L.L.C.), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. KELTIC FISH L.L.C. MAKES NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER REQUIREMENTS, SPECIFICATIONS, EXPECTATIONS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED, THAT THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER CONTENT, CUSTOMER APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY KELTIC FISH L.L.C.. CUSTOMER ACKNOWLEDGES THAT KELTIC FISH L.L.C. DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. KELTIC FISH L.L.C. IS NOT RESPONSIBLE FOR MESSAGES OR INFORMATION LOST OR MISDIRECTED DUE TO INTERRUPTIONS OR FLUCTUATIONS IN THE SERVICES OR THE INTERNET IN GENERAL, OR FOR ANY ISSUES RELATED TO THE PERFORMANCE, USE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER’S USE, CUSTOMER CONTENT, CUSTOMER APPLICATIONS, OR THIRD-PARTY CONTENT. KELTIC FISH L.L.C. DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS OR USEFULNESS OF THIRD-PARTY CONTENT. TO THE EXTENT THAT KELTIC FISH L.L.C. CANNOT DISCLAIM ANY WARRANTIES IN CERTAIN JURISDICTIONS, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. ALTHOUGH REASONABLE EFFORTS ARE MADE TO PROVIDE SECURITY FOR VOICEMAILS AND FAX TRANSMISSIONS, KELTIC FISH L.L.C. MAKES NO GUARANTEES OR WARRANTIES OF SECURITY. IN ANY EVENT, KELTIC FISH L.L.C. SHALL NOT BE LIABLE FOR ANY AND ALL: INDIRECT, INCIDENTAL, GENERAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES.
23. Limitation of Liability
NEITHER KELTIC FISH L.L.C., NOR ITS AFFILIATES, VENDORS, SUPPLIERS, DISTRIBUTORS, OR OTHER REPRESENTATIVES SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, REPLACEMENT COSTS, OR ANY LOSS OF REVENUE OR PROFITS, CONTENT, DATA, OR DATA USE, EVEN IF KELTIC FISH L.L.C. HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE REASONABLY BEEN FORESEEN BY KELTIC FISH L.L.C.. KELTIC FISH L.L.C.’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO KELTIC FISH L.L.C. UNDER THIS AGREEMENT IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM. THE PARTIES ACKNOWLEDGE AND ACCEPT THE REASONABLENESS OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION.
24. Statute of Limitations.
You agree that any claim against KELTIC FISH L.L.C., whether arising in tort, contract or otherwise, must be brought within Six (6) Months of the date giving rise to the claim or be forever barred.
During the term of this Agreement, a renewal term of this agreement, and for a period of two (2) years from the voluntary or involuntary termination of this Agreement, You shall not knowingly solicit, induce, or attempt to induce any past or current customers, clients, prospects, employees, attorney referrals, vendors and any other client, customer or referral contacts of KELTIC FISH L.L.C. : (a) to cease doing business in whole or in part with or through KELTIC FISH L.L.C. , or (b) to do business with any other person, firm, partnership, corporation, or other entity which performs services materially similar to or competitive with those provided by KELTIC FISH L.L.C.. In the event of a breach of this clause, You agree that damages will be difficult to estimate and that KELTIC FISH L.L.C. shall be entitled to seek injunctive, equitable relief to enforce this Agreement.
Customer agrees to defend, indemnify and hold harmless KELTIC FISH L.L.C. from and against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with claims made or brought against KELTIC FISH L.L.C. by a third party arising from or relating to: (i) any act, error, omission, fault, negligence, or misconduct of Customer or any user of the Services, Software or KELTIC FISH L.L.C. Equipment, whether authorized or unauthorized by Customer; (ii) Customer’s breach of any obligation, warranty, representation, or covenant of this Agreement or the AUP; (iii) any claim by any employee or invitee of Customer or user other than a claim based on the gross negligence or willful misconduct of KELTIC FISH L.L.C.; (iv) any claim by any customer of Customer, end user or other third party relating to, or arising from, Customer Data or Customer’s use of the Services, Software or KELTIC FISH L.L.C. Equipment; or (v) violation of any Applicable Laws by Customer or any Customer employee, contractor or agent.
27. Risk of Loss
At all times, You will bear the risk of any loss, damage or destruction of Your assets, Equipment or property provided or maintained by KELTIC FISH L.L.C., from: fire, water damage, theft or other casualty. You will be solely responsible for insuring Your property and filing insurance claims for losses associated therewith. If KELTIC FISH L.L.C. is aware of loss or casualty to Your property, KELTIC FISH L.L.C. will immediately notify You, stating the extent of loss or damage incurred and the cause, if known. You shall immediately reimburse KELTIC FISH L.L.C. for any loss, damage or destruction of equipment, labor and any other incidental or consequential expenses.
1. Confidential Information” means all nonpublic information relating to a Party or its Affiliates that (i) if provided in writing, is marked or labeled as confidential or proprietary, or (ii) if provided verbally, is designated as confidential at the time of disclosure, or (iii) even if not so marked, labeled or identified, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation, all nonpublic information relating to (i) a Party’s or its Affiliates’ technology, customers, employees, business plans, agreements, finances and other business affairs, (ii) the KELTIC FISH L.L.C. network or service delivery platform, and (iii) the terms of any Order Form. Confidential Information does not include any information that (i) has become publicly available without breach of this Agreement, (ii) was known to the Party receiving Confidential Information under this Agreement (the “Receiving Party”) at the time of its receipt from the Party disclosing the Confidential Information (the “Disclosing Party”) or its Affiliates as shown by documentation reasonably acceptable to Disclosing Party, (iii) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (iv) was independently developed by the Receiving Party without use of any Confidential Information as shown by documentation reasonably acceptable to Disclosing Party.
1. Each Party hereby agrees to hold Confidential Information in strict confidence and shall, in any case, protect such Confidential Information with no less diligence than that with which it protects its own confidential or proprietary information of a similar nature. The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose unrelated to the Services. Each Party may disclose the Confidential Information of the other Party on a “need to know basis” and then only to its (and, in the case of KELTIC FISH L.L.C., its Affiliates’) directors, officers, advisors, employees and other legal, business or financial partners or representatives; provided that all such persons are subject to written confidentiality agreements which contain provisions, which are no less restrictive than the provisions of this Section. In addition, KELTIC FISH L.L.C. may disclose this Agreement under a comparable non-disclosure agreement in response to a third-party due diligence request supporting a financing or non-ordinary course of business corporate transaction.
1. If the Receiving Party is legally compelled by any means (including deposition, interrogatory, request for documents, subpoena, civil or regulatory investigative demand or similar process) to disclose Confidential Information of the Disclosing Party, subject to applicable laws, the Receiving Party must provide the Disclosing Party with prompt written notice of such legal requirement in order to allow the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with this Section.
1. Upon the termination or expiration of this Agreement, or at any time upon the request of the Disclosing Party, the Receiving Party shall, at the Disclosing Party’s option, return or destroy (and certify as to such destruction) all Confidential Information of the Disclosing Party in its control or possession, other than copies which the Receiving Party may be required to maintain under applicable law or regulation.
29. E911 Disclaimer
BY USING THE SERVICE AND/OR KELTIC FISH L.L.C. EQUIPMENT, CUSTOMER ACKNOWLEDGES THE LIMITATIONS OF KELTIC FISH L.L.C.’S E911 SERVICE AS DESCRIBED HEREIN. CUSTOMER AGREES AND ACKNOWLEDGES THAT WHILE MOST KELTIC FISH L.L.C. SERVICES OFFER ACCESS TO E911 SERVICE, OTHERS MAY NOT. CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS AND AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ASSUMES THE RISKS ASSOCIATED WITH THE KELTIC FISH L.L.C. E911 SERVICE LIMITATIONS.
30. 911 Emergency Services
You are responsible for the accuracy and the completeness of the address that You submit to KELTIC FISH L.L.C. for the location at which KELTIC FISH L.L.C. will be used and to which emergency service will be sent in the event that You use the KELTIC FISH L.L.C. E911 dialing service. You are responsible for updating and of the advising Us of any and all changes to the address or location at which KELTIC FISH L.L.C. will be used. KELTIC FISH L.L.C. uses a third party to route the E911 dialed calls to the applicable local emergency response center or to the national emergency calling centers. We make no warranties or guarantees as to whether, or the manner in which, E911 dialed calls that You make are answered or responded to by the local emergency response center or by the national emergency calling centers. We disclaim any and all liability or responsibility in the event that the third-party data used to route E911 dialed calls is incorrect or yields an erroneous result. Neither KELTIC FISH L.L.C., its officers, directors, stockholders, parent corporation, its affiliated or subsidiary corporations, employees, representatives or agents may be held liable for any claim, damage or loss, and You hereby waive any and all such claims or causes of action, arising from or relating to KELTIC FISH L.L.C. E911 dialing service unless such claims or causes of action arise from KELTIC FISH L.L.C.’s gross negligence, recklessness or willful misconduct. You agree to release, indemnify, defend and hold harmless KELTIC FISH L.L.C., its officers, directors, stockholders, parent corporation, its affiliated or subsidiary corporations, employees, representatives or agents and any other service provider who furnishes services to You from any and all claims, damages, losses, suits or actions, fines, penalties, cost and expenses (including, but not limited to, attorney fees) or any liability whatsoever, whether suffered, made, instituted or asserted by You or by any other party or person, for any personal injury to or death of any person or persons, or for any loss, damage or destruction of any property, whether owned by You or others, or for any infringement or invasion or the right of privacy of any person or persons, caused or claimed to have been caused, directly or indirectly, by the operation, failure or outage of services, incorrect routing, or use of, or inability of a person to use, KELTIC FISH L.L.C. 911 dialing feature or service or access emergency service personnel. If You lose power or there is a disruption to power at the location where KELTIC FISH L.L.C. is used, neither KELTIC FISH L.L.C. nor the E911 dial feature will function until power is restored. You should also be aware that after a power failure or disruption, You may need to reset or reconfigure the KELTIC FISH L.L.C. device prior to utilizing the service, including the E911 dialing feature.
31. Local Number Portability
31.1 Number Transfer on Service Activation. In the event Customer is not utilizing a new phone number or numbers for the Services, but rather is transferring existing phone number(s) which currently is subscribed to a carrier other than KELTIC FISH L.L.C. to KELTIC FISH L.L.C., the terms and conditions of this Section shall apply:
1. Customer hereby authorizes KELTIC FISH L.L.C. to notify Customer’s current local telephone company or other service provider of its decision to switch local, local toll and long-distance services to KELTIC FISH L.L.C. and represents that Customer is authorized to take this action;
2. Customer acknowledges that service providers require verification of identity, as well as authorization and other reasonable information in order to transfer (or “port”) any numbers to KELTIC FISH L.L.C.. Customer must correctly complete a letter of authorization, provide KELTIC FISH L.L.C. with a copy of Customer’s most recent bill from such service provider, and provide KELTIC FISH L.L.C. with any other information required by such service provider to port Customer’s number to KELTIC FISH L.L.C.. FAILURE TO PROVIDE ANY INFORMATION REQUESTED BY KELTIC FISH L.L.C. OR THE THIRD-PARTY SERVICE PROVIDER WILL DELAY THE PORTING OF THE NUMBER TO KELTIC FISH L.L.C.. KELTIC FISH L.L.C. SHALL NOT BE RESPONSIBLE FOR ANY DELAY IN THE PORT OF CUSTOMER’S NUMBER AND WILL NOT PROVIDE CREDIT FOR ANY SUCH DELAYS.
3. Customer agrees and acknowledges that if the Services are set up prior to the date that the number transfer becomes effective (“Port Effective Date”), Customer may only be able to make outgoing calls using the Services. In such event, Customer should keep another phone connected to the existing phone number to receive incoming calls until the Port Effective Date, after which Customer will be able to both make and receive calls using the Service. Customer agrees and acknowledges that if the Activation Date has not occurred as of the Port Effective Date, its existing phone service for the number being transferred may be disconnected and Customer may have no service for that number. Therefore, to avoid an interruption in Customer’s phone service, Services must be activated prior to the Port Effective Date. An estimate of the Port Effective Date will be sent to Customer via e-mail by KELTIC FISH L.L.C..
31.2 Number Transfer on Service Termination. After the Activation Date, KELTIC FISH L.L.C. or its providers may receive requests from other telephone providers (“Requesting Party”) acting as agents on Customer’s behalf to port a telephone number currently assigned to Customer to a third-party provider (“Port-Out”). KELTIC FISH L.L.C. will support all such requests and will cooperate with the Requesting Party to perform any Port-Out in accordance with the Requesting Party’s reasonable directions and KELTIC FISH L.L.C.’s or its vendors’ standard operating procedures. Until the effective date of Customer’s proper termination (in accordance with the terms of this Agreement), Customer will: (a) remain a KELTIC FISH L.L.C. customer; and (b) be responsible for all charges and fees associated with Customer’s KELTIC FISH L.L.C. Service. Customer will not receive any refund or partial refund or any credits for any charges already billed to Customer’s account. KELTIC FISH L.L.C. assumes no liability for costs associated with any numbers that cannot be ported or that Customer chooses not to port. Customer acknowledges that in the event of any account termination or cancellation, all telephone numbers associated with Customer’s account may be released. Similarly, the cancellation of individual services that have associated telephone numbers will result in the release of such numbers. Customer acknowledges that it is Customer’s responsibility to work with a third-party provider to port out those numbers prior to Customer’s termination or cancellation of Customer’s account or termination of Services.
31.3 Ported Telephone Numbers Upon Cancellation.
31.3.1 Cancellation. If Customer requests that a new service provider port a number from KELTIC FISH L.L.C., then Customer is required to inform KELTIC FISH L.L.C. of Customer’s intent to terminate the specific affected Services on Customer’s account or KELTIC FISH L.L.C. will continue to bill for such Services. Customer will continue to be responsible for all the charges and fees associated with the remaining Services on Customer’s KELTIC FISH L.L.C. account. Customer will not receive any refund or partial refund or any credits for any charges already billed to Customer’s account.
31.3.2 Consent & Electronic Submission. Customer may withdraw Customer’s consent to submit Customer’s porting request electronically by contacting KELTIC FISH L.L.C. Customer Care prior to Our submitting the porting request to the carrier.
31.3.3 Facsimile Service. Numbers assigned by KELTIC FISH L.L.C. for KELTIC FISH L.L.C.’s facsimile service cannot be ported to a new service provider without the assistance and cooperation of KELTIC FISH L.L.C.’s underlying partner. KELTIC FISH L.L.C. will use commercially reasonable efforts to facilitate a port of a facsimile number which was ported on Customer’s behalf to KELTIC FISH L.L.C. by another service provider.
32.1 Assignment. This Agreement inures to and is binding upon the Parties’ successors and permitted assignees. Customer shall not assign this Agreement without KELTIC FISH L.L.C.’s prior written consent, not to be unreasonably conditioned, withheld or delayed; provided that Customer may, without consent, but with reasonable prior written notice, assign its rights and obligations hereunder to any parent, affiliate or subsidiary of Customer or pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets; provided, however, that any proposed assignee shall be at least as creditworthy as Customer (as reasonably determined by KELTIC FISH L.L.C.), shall agree in advance and in writing to assume and be bound by all provisions of this Agreement, and shall deliver to KELTIC FISH L.L.C. fully-executed documents reasonably acceptable to KELTIC FISH L.L.C. establishing the terms of such an assignment. Any assignment by Customer other than as permitted by this Section shall be void and of no force or effect.
32.2 Force Majeure. Neither Party is liable for any failure of performance (other than for delay or performance in the payment of money due and payable hereunder) to the extent such failure is due to any cause or causes beyond such Party’s reasonable control, including acts of God, fire, explosion, pandemic, vandalism, cable cut, adverse weather conditions, governmental action, acts of terrorism or strikes and similar labor difficulties. Either Party’s invocation of this clause will not relieve Customer of its obligation to pay for any Services actually provided or permits Customer to terminate any Services except as expressly provided herein. In the event such force majeure event prevents the availability or material use of the affected portion of Services and such event continues for more than ten (10) consecutive days, either Party may terminate the affected portion of the Services without liability.
32.3 Intellectual Property and Publicity. Except as explicitly granted herein, neither Party is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, logos, trade names, patents, trade secrets or other form of intellectual property of the other Party or its affiliates without the express prior written authorization of the other Party. Customer will not issue any press release or other public statement relating to this Agreement, except as may be required by law or agreed by KELTIC FISH L.L.C. in a writing signed by an authorized representative of KELTIC FISH L.L.C.’s Corporate Communications department. Customer agrees that KELTIC FISH L.L.C. may identify Customer using its name, trademarks and/or logos in its marketing collateral, presentations and websites, provided that Customer may revoke such right with written notice to KELTIC FISH L.L.C. at any time.
32.4 Nonexclusive. This Agreement is non-exclusive. Nothing in this Agreement prevents either Party from entering into similar arrangements with other persons or entities.
32.5 Notices. Notices shall be made as follows:
1. To Customer:In the event KELTIC FISH L.L.C. is required or desires to provide Customer with notice under this Agreement, it will provide electronic notice to the e-mail address on file for the Company Contact. In the event Customer changes its e-mail address for notice purposes, Customer shall advise KELTIC FISH L.L.C. immediately in writing. Customer hereby agrees to electronic delivery of all required notifications, including invoices, unless otherwise expressly provided herein.
2. To KELTIC FISH L.L.C.:Any notice required or given under this Agreement to KELTIC FISH L.L.C., except for any billing dispute which will be delivered to the address referenced above, will be in writing and delivered to KELTIC FISH L.L.C. as follows:
KELTIC FISH L.L.C.:
3100 Mill St Suite 212
Reno, NV 89502
Such address and contact information may be changed by either Party by prior written notice to the other Party in accordance with this paragraph. A notice will be deemed to be duly given (i) on the date of delivery if personally delivered by hand or by a nationally recognized overnight express courier, or (ii) upon the third day after such notice is deposited in the United States mail, if mailed by registered or certified mail, postage prepaid, return receipt requested. For clarity, e-mail or fax notices are informational only and shall not constitute formal notice.
32.6 Facsimile and Electronic Transmission; Counterparts. Order Forms, and other documents that may be executed in connection with the Services (collectively “Service Documentation”), may be executed and delivered by facsimile or electronic transmission, and upon receipt, such transmission shall be deemed the delivery of an original. Service Documentation may be executed in several counterparts, each of which when executed shall be deemed to be an original, and such counterparts shall each constitute one and the same instrument.
32.7 Basis of Bargain; Failure of Essential Purpose. Customer acknowledges and agrees that KELTIC FISH L.L.C. has established its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability and the warranty disclaimers set forth in this Agreement, and that they are an essential basis of the bargain between the parties and are material terms of this Agreement. The Parties agree that the limitations and exclusions of liability and warranty disclaimers specified in this Agreement will survive and apply even if found to have failed their essential purpose, and Customer hereby waives its right to contest the enforceability of any provision of this Agreement by reason of such failure.
32.8 No Commitments. Customer represents that KELTIC FISH L.L.C. has made no commitments or promises orally or in writing with respect to delivery of any future features or functions. In relation to any future features or functions, all presentations, RFP responses, and/or product roadmap documents, information or discussions, either prior to or following the date herein, are informational only, and are not the basis for, nor part of this Agreement or any Order Form. KELTIC FISH L.L.C. has no obligation to provide any future releases or upgrades or any features, enhancements or functions, unless specifically agreed to by both Parties. Customer acknowledges that its purchasing decisions are not based upon any future features or functions.
• Survival, Modification. The terms and conditions of this Agreement will survive the expiration or other termination of this Agreement to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the Party in whose favor they operate. Except for the rights of KELTIC FISH L.L.C. reserved in this Agreement, all modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by authorized representatives of both parties.
32.10 Relationship of the Parties. The relationship of KELTIC FISH L.L.C. and Customer shall not be that of partners, agents or joint venturers for one another, and nothing contained in the Agreement shall be deemed to constitute a partnership or agency agreement between the Parties for any purposes. KELTIC FISH L.L.C. and Customer shall be independent parties and shall discharge their contractual obligations at their own risk subject to the terms of this Agreement.
32.11 Third Party Services. KELTIC FISH L.L.C. may use or rely on one or more licensors, service providers, and/or equipment providers or equipment lessors whose products, equipment and/or services are provided in conjunction with, or incorporated into, the Services and/or KELTIC FISH L.L.C. Equipment (“Third-Party Services”). Each provider of such Third-Party Services (a “Third-Party Service Provider”) is expressly made a third-party beneficiary under the applicable Order Forms and this Agreement and shall have the right to enforce the terms and conditions of the Order Forms and this Agreement respecting any terms affecting such Third-Party Service Provider as if such Third-Party Service Provider were a party to the Order Form and/or this Agreement. No other third-party beneficiaries of this Agreement are intended by the Parties. Further, Third-Party Services may be governed by separate legal terms and conditions, which may be found or identified in documentation or on other media delivered with the Third-Party Services and which are incorporated by reference into these Terms and shall govern the use of Third-Party Services. Customer agrees to comply with such terms and conditions of all Third-Party Services and Third-Party Service Providers. Any non-compliance with terms and conditions of Third-Party Service Providers shall be considered non-compliance with these Terms.
32.12 Waiver. The failure of either Party to enforce compliance with a provision of this Agreement shall not be construed as a general waiver of such provision or any other provision.
32.13 Severability. If any term, covenant or condition contained in this Agreement or any Order Form is, to an extent, held invalid or unenforceable in any respect under the laws governing this Agreement, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
32.14 Governing Law. This Agreement shall be subject to and governed by the laws of the State of Michigan. Any claim under this Agreement may be arbitrated in Wayne County, Michigan if KELTIC FISH L.L.C. gives advanced written consent to You to arbitrate. Notwithstanding the foregoing, venue for any legal action arising out of this Agreement shall be exclusively within the State of Michigan, Wayne County Circuit Court or the Federal District Court for the Eastern District of Michigan.
32.15 Entire Agreement. This Agreement supersedes any prior or contemporaneous agreements, statements, understandings, writings, commitments, or representations concerning its subject matter, as between Customer and KELTIC FISH L.L.C..
32.16 Export Controls. Customer agrees to comply fully with all relevant export laws and regulations of the United States, including the U.S. Export Administration Regulations, administered by the Department of Commerce. Customer also expressly agrees that it shall not export, directly or indirectly, re-export, divert, or transfer any portion of KELTIC FISH L.L.C. Service, Equipment or Software to any destination, company, or person restricted or prohibited by U.S. export controls.
32.17 Severability. If any term, covenant, or condition contained in this dispute resolution/arbitration provision, is, to an extent, held invalid or unenforceable in any respect under the laws governing this dispute resolution/arbitration provision, the remainder of this dispute resolution/arbitration provision shall be valid and enforceable to the fullest extent permitted by law.
33. Dispute Resolution; Binding Arbitration
Any dispute or claim between You and KELTIC FISH L.L.C. arising out of or relating to this Agreement must be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration. The arbitration must take place in Dearborn, Michigan and must be conducted in English. The arbitrator’s decision must follow the plain meaning of the relevant documents, and must be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: 1) award relief in excess of what this Agreement provides; or 2) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims must be arbitrated individually and You will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. YOU ACKNOWLEDGE THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.