Terms & Conditions
These Terms & Conditions (“T&C”) shall govern the relationship of the parties regarding Customer’s use of the Company’s services.
The services are as described in the attached Sprint Solutions, Inc Custom Service Agreement and any related schedules (“Services”) which are incorporated herein.
2. AVAILABILITY, SERVICE LEVEL AGREEMENT.
The availability, service level agreement and any service credit limitations shall be as defined in any SLA attached as a Sprint Solutions, Inc Custom Service Agreement to this T&C.
3. CONFIDENTIAL CUSTOMER PROPRIETARY INFORMATION, COMPANY DATA, CUSTOMER DATA.
3.1. CCPI Defined.
End user information, rates and terms issued to and received from Customer, Customer’s clients, and those commercial relationships obtained by Company by its provision of Services are considered Confidential Customer Proprietary Information (“CCPI”).
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 Services 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.
Company uses, discloses, and permits access to CCPI for the purpose of developing current and future services, providing aggregate market data on Services usage and related statistics. 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.
3.4. CCPI Retention.
All CCPI and related data remaining after the date of termination may be destroyed for security and privacy reasons and will be removed or archived within ninety (90) days, unless otherwise required by law.
4. ACCEPTABLE USE POLICY (“AUP”).
4.1. Permitted Use.
Customer agrees to use Company’s Services solely for its intended purposes. Furthermore, Customer acknowledges that use of Company’s Services is solely for the benefit of the Customer and Customer may not resell, sub-license, rent or otherwise allow use by a third party without the express written consent of the Company. 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.
4.2. 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.
- 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.
- Illegal 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.
- Fraudulent Activities. Company prohibits utilizing dedicated services or network services for fraudulent activities.
4.3. 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, the Company reserves the right to respond if it is the named party in such subpoena, warrant, or order.
4.4. Abusive Use/Traffic, Suspension.
- Abuse. 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 T&C, (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 Company’s reasonable investigation of any suspected violation of the T&C; (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 Company’s network or other customers, (vi) a payment for the Services is overdue in accordance with Section 10.1, or (vii) suspension is required by law.
- Suspension. Except for suspension procedures for non-payment as set forth in Section 10, Company will give reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension is based, unless Company determines, in its reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect the Company or Company’s other customers from imminent and significant operational or security risk. If the suspension was based on Customer’s breach of its obligations under the T&C, then Company may continue to charge fees for the Services during the suspension and may charge a reasonable reinstatement fee upon reinstatement of the Services. Any outage to the Customer caused by the Company exercising its discretion under this Section 9.4 shall not be grounds for an SLA credit to the Customer under Section 5, and any related Sprint Solutions, Inc Custom Service Agreement, of this T&C, nor shall the Company be held liable for any damages caused to Customer for acting under this provision.
4.5. 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 for the provider allegedly in violation, and description of the violation. Unless otherwise required by law 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.
5. DATA, DATA RETENTION.
5.1. Data Storage.
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 the Customer must ensure that it complies with any applicable rules, laws, regulations, or the like in all applicable regions or countries.
5.2. Data Access.
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 email@example.com.
6. 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 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 with the T&C and other applicable contracts between parties.
CUSTOMER AGREES TO ABIDE BY ALL LOCAL, STATE, AND FEDERAL LAWS PURSUANT TO SERVICES DELIVERED.
8. LIMITATION OF LIABILITY, WARRANTY.
EXCEPT AS DESCRIBED IN THE APPLICABLE 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. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOST PROFITS, INDIRECT, SPECIAL OR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS T&C, 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 SIX (6) MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM. EXCEPT AS OTHERWISE PROVIDED IN THIS T&C, 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 MERCHANTABILITY OR 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 T&C 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 T&C 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 T&C WITHOUT THE INCLUSION HEREOF.
9. 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.
10. OWNERSHIP OF INTELLECTUAL PROPERTY.
Each party retains all right, title and interest in and to Company’s respective patents, trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by Company during the performance of the Services shall belong to the Company unless the parties have agreed in advance in writing that the Customer shall have an interest in the intellectual property.
11. ATTORNEYS’ FEES, COSTS AND INTEREST FOR DISPUTES.
In the event of litigation between the parties regarding this T&C, the losing party shall be responsible for any fees and costs (including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees) incurred by the prevailing party in enforcing its rights or obligations under this T&C. In addition, the Company shall be entitled to prejudgment and post judgment interest on all subscription fees, late fees, service fees, losses 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.
Except as otherwise provided in this T&C, no failure or delay by either party to enforce any right or remedy available under this T&C shall constitute a waiver of such right or remedy or a waiver of any other right or remedy.
13. THIRD PARTY BENEFICIARY.
Except for Customer, Company or an affiliated entity of Company, a person who or which is not a party to this T&C shall have no right to enforce any term of this T&C.
If any provision of this T&C 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 T&C in that jurisdiction shall not be affected, and the legality, validity, and enforceability of the whole of this T&C in any other jurisdiction shall not be affected.
15. LEGAL COMPLIANCE.
By accepting this T&C, Customer represents and warrants that (i) it 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) it is not listed on any U.S. Government list of prohibited or restricted parties. Further, the signatory for the Customer represents and warrants that they have full authority and power to execute this T&C on behalf of the Customer.
Service Level Agreement
This Service Level Agreement (“SLA”) applies to Services provided to Customer in Exhibit 1 of this T&C.
- Service Availability. (“Uptime”). All indicated Services will be operational and available at least ninety-nine and ninety-nine one-hundredths percent (99.99%) of the time during a calendar month (the “Uptime Minimum”). If Services Uptime is less than the Uptime Minimum, then Company will issue an SLA credit as identified in the Service Availability Table.
- Downtime. For purposes of service availability, a downtime shall mean that there was an outage that resulted in the non-availability of a service (“Service Downtime”). Service Downtime shall not include any time during which the Services are not available due to: (i) maintenance windows; (ii) acts or omissions of any party other than Company or Company’s vendors and agents; (iii) hardware, software, networks, equipment or interfaces other than those provided or managed by Company, its vendors and agents; (iv) third-party service providers other than Company, its vendors and agents; (v) any other equipment, applications or components not directly managed or controlled by Company, its vendors and agents; (vi) issues unrelated to the Company caused by failures of the public Internet; or (vii) one or more of the causes listed in Section 21 of the T&C.
|Service Uptime||Service Credit|
|Uptime >= 99.99 %||No Credit|
|99.99% to 98.00%||5% service credit|
|<= 98.00%||10% services Credit|
- Service Availability Failure. A “Service Availability Failure” for purposes of this section is defined as a reported Service availability of less than ninety-eight percent (98%) for any two consecutive months during the Term.
- Maintenance Window. Refers to upgrades of hardware or software or upgrades to increase capacity. Maintenance Windows may temporarily degrade the quality of the Service, including possible outages. Such effects related to Normal Maintenance will not give rise to service credits under this SLA. Normal Maintenance will be undertaken between the hours of 01:00 and 06:00 GMT.
- Remedies. In order to obtain credits under the above SLAs, Customer must request the credit after opening a trouble ticket or sending an email to firstname.lastname@example.org. Such requests must be made within thirty (30) calendar days from the date when the relevant SLA was not met. A credit will be applied only to the month in which the event giving rise to the credit occurred. The maximum credits for a specific outage will not exceed ten (10) days’ credit. In no event will the total credit, in the aggregate for all credits issued in one month exceed the equivalent of 100% of the relevant MRCs for the Services. The provisions of this SLA state Customer’s sole and exclusive remedies for Service interruptions or Service deficiencies of any kind whatsoever.