TNC BUSINESS SERVICES AGREEMENT/ TNC MASTER SERVICES AGREEMENT
This Business Services Agreement (‘‘Agreement’’) applies to the TNC Services to which You subscribe, except for Services provided under (a) a Tariff; or (b) another agreement between You and TNC (unless that other agreement references this Agreement).
The Effective Date of this Agreement for any individual Service is the later of: (a) the date on which the withdrawal of a Tariff governing the Service becomes effective; or (b) the date on which You subscribe to or use the Service. When You apply for, subscribe to, or use the Service after the Effective Date, You are accepting the terms of this Agreement. If You do not agree with the terms of this Agreement, You must notify TNC prior to the Effective Date to disconnect the Service. To disconnect the Service, You must contact TNC by calling the number on Your billing statement or by using any other method designated by TNC. You will be responsible for all applicable charges incurred prior to termination. By Customer signature of an TNC Service Order or any other TNC Document indicating a request or authorization for TNC to act on behalf of Customer for Service, Customer is entering into a legally binding Agreement for Service with TNC. Unless otherwise agreed to in writing by TNC, all service shall be provided for a minimum service term, as indicated on pages of the Service Order and Customer shall pay all charges thereof through the end of the service term plus any termination charges defined herein. Such term shall commence on the date upon which the Service is made available for use by Customer even if Customer does not use the Service and shall continue until the expiration of the term or until this Agreement is otherwise terminated as set forth herein, whichever comes first. See the Billing Start Date Guide for examples of billing starts dates based on service delivery availability. Upon Service Order expiration, the Service Order shall automatically renew in the same term length as the original Service Order until and/or unless the Service Order is formally terminated by Customer. In the case of an upgrade placed by Customer for and to an existing circuit(s) related to a specific Service Order Form, Customer acknowledges that Customer may incur a thirty (30) day overlap of billing to ensure continuity and operability of service. Further is such billing overlap does exist Customer affirms and agrees that they shall make full payment to TNC for any service overlap. TNC TARIFFS, GUIDEBOOKS and SERVICE GUIDES, (COLLECTIVELY, THE “SERVICE PUBLICATIONS”) AS MODIFIED FROM TIME‐TO‐TIME, ARE INCORPORATED BY REFERENCE HEREIN TO THE EXTENT EACH IS APPLICABLE TO THE SERVICE(S) PROVIDED UNDER THIS AGREEMENT, AS IF THOSE DOCUMENTS ARE SET FORTH ORIGINALLY HERE. You agree that it is impractical for TNC to provide here all of the terms and conditions, including rates and charges, that are set forth under those documents and that TNC has acted reasonably in providing access to the Tariffs, Guidebooks and Service Guides as described in Section 1. THIS CONTRACT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
Terms not otherwise defined in this Agreement have the following meanings:
a. “Agreement” “Terms” “Terms and Conditions” “Terms & Conditions” means the terms and conditions set forth herein and in all incorporated documents.
b. “API” means an Application Program Interface used to make a resources request from a remote implementer program. An API may include coding, specifications for routines, data structures, object classes, and protocols used to communicate between programs.
c. “TNC” “the Company” “we” “our” and “us” means the affiliates and subsidiaries of TNC Communications Inc. that provide or may provide Services to You under this Agreement. In the Tariffs, Guidebooks and Service Guides, TNC may be referred to as ‘‘the Technology Company,” or ‘‘the Company.’’ TNC may use partners and affiliates of other companies to perform and power the services.
d. “Acceptable Use Policy” or “AUP” means TNC’s policy that applies in accordance with its terms to any Service or Service capability within its scope, as may be modified by TNC from time‐to‐time, including, by way of example only, Services provided over or accessing the Internet or certain
wireless data networks. The AUP is provided at tncconnected.com/aup and is incorporated by reference here as if originally set forth here.
e. “Guidebooks” are those documents that contain the standard descriptions, pricing, and other terms and conditions for Services that were, but no longer are, filed with regulatory commissions. You can find TNC’s Guidebooks at tncconnected.com/servicepublications. (In some jurisdictions, the Guidebooks may be called ‘‘Catalogs’’ or ‘‘Service Descriptions,” “Price Lists’’ or “Terms of Service.”) If
You do not have access to the Internet, You may call a TNC representative at the number that appears on Your billing statement for a copy of the Guidebook(s) that apply to Your Service(s). TNC
reserves the right to modify the Guidebooks from time‐to‐time by the methods described elsewhere in this Agreement; You should regularly review the Guidebooks for Your Service(s) to ensure You are familiar with the current controlling terms and conditions.
“Property” or “Properties” “Location” or “Locations” means the service address notated on any Service Order or TNC Document by which TNC is delivering, providing, installing, or otherwise implementing Services or equipment to Customer.
a. “Service” or “Services” means the retail business services offered by TNC to Customer pursuant to this Agreement. Commercial Mobile Radio Services (such as cellular or other wireless services) are not retail business services under this Agreement. A “Service Component” means an individual component of a Service. b. “Service Guides” are documents that contain the standard description, prices, and other terms and conditions for Services that are not contained in a Guidebook or a Tariff. You can find TNC’s
Service Guides at tncconnected.com/servicepublications. If You do not have access to the Internet, You may call an TNC representative at the number that appears on Your billing statement or email email@example.com for a copy of the Service Guide(s) that apply to Your Service(s). TNC reserves the right to modify the Service Guides from time‐to‐time by the methods described elsewhere in this Agreement; You should regularly review the Service Guides for Your Service(s) to ensure You are familiar with the current controlling terms and conditions.
c. “Software” means software, including APIs, and all associated written and electronic documentation and data licensed by TNC or a Third party to Customer. Software does not include software that is not furnished to You.
d. “Tariffs” are documents that contain the standard descriptions, pricing, and other terms and conditions for Services for which a regulatory commission requires TNC to file a Tariff. You will find TNC’s Tariffs at www.tnc.com/servicepublications.
e. “You” or “Your” or “Customer” means the person or entity subscribing to the Service(s) provided under this Agreement, and its employees, directors, agents, end‐users, and representatives. f.
2. USE OF THE SERVICES
a) TNC will provide Services to You, subject to availability and operational limitations of systems, facilities, and equipment. You may not resell the Services to third parties without TNC’s written consent. You shall cause Users (anyone who uses or accesses any Service provided to You) to comply with this Agreement, and You are responsible for their use of any Services. You and all Users shall comply with all applicable state and federal laws, statues, regulations and rules, and in accordance with; (i) normal acceptable business use, (ii) in accordance and compliance with city, county, state and Federal laws; and (iii) Services are not to be used for any illegal purpose and such lawful and acceptable use is to binding on Customer. You are responsible for ensuring that all of the equipment You and Your Users use with a Service is compatible with the Services. You and any Users must comply with the AUP. Transmission, promulgation, theft, procurement of, communication, alteration, publication or storage of any information, protected material/property, data or material in violation of any United States Federal, state, or local law, statue, regulation or rule is strictly prohibited. The aforementioned includes, but is not limited to, any material, data, matter, software or software code, or intellectual property protected by copyright, trademark, privacy or other proprietary, personal or property right, trade secret, or any other statute. If You desire to secure Your transmissions in connection with any of the Services, You must procure, at Your own cost, encryption software or other transmission protection. Services may be provided by TNC or its affiliates.
(b). Customer is solely responsible for the adherence to any and all laws, statutes, rules and regulations pertaining to: (i) Customer’s use of the TNC Services, (ii) the use of any network(s) connected to the TNC Services, and, (iii) the communications means by which Customer connects their router, PC, terminal or any other equipment to use and access the TNC Services. Customer is responsible for managing all the activity occurring through use of the Voice service, including the activity of its End Users, employees, independent contractors, affiliates, third parties and agents. At all times Customers shall abide by all applicable local, state, national and foreign laws, treaties and regulations, including those related to data privacy, international communications and the transmission of technical or personal data.
(c) It is unlawful and a violation of this Agreement to communicate, transmit, or promulgate in any matter, means or medium, any threatening, harassing, or obscene material, and communication of any sort, or, to otherwise use the TNC Services for any illegal, unlawful purpose and/pr to violate any stipulations as specified in the TNC Acceptable Use Policy (“AUP”). TNC will have full rights to undertake any steps as prescribed herein this Agreement without limitation suspension or cancellation of use of Customer’s Service in the event Customer is in violation of the then current AUP. Suspension or termination of Service by TNC shall not relieve Customer of any outstanding payments, or termination charges which may be imposed by TNC.
3. Availability & Service Delivery
(a) Availability. The Services and equipment are offered subject to the availability of the necessary facilities, power, services, and equipment, and subject to the provisions of this Agreement. TNC shall not be responsible or liable in any manner for delay in installing or providing Service or equipment ordered by Customer. Customer agrees that they meet all requirements and considerations to undertake and use the TNC Services.
(b) Service Delivery. TNC will notify Customer of the In‐Service Date (Service Availability Date) which is the date when the Service has been successfully installed and is available for Customer’s use with such installation performed either by TNC or by Customer. When TNC makes the Service available to Customer, but Customer is not ready to accept Service delivery or use of the Service, such billing shall commence on the In‐Service Date as Customer’s Service is provisioned and available for use. Failure by Customer to use the Service commencing on the In‐Service Date shall be deemed as an automatic acceptance of Service even if the Service is not used by Customer. Unless provided however Customer has provided prior written notification to TNC before commencement of the In‐Service Date.
(c) TNC make no representation regarding the speed of any Internet or web‐based service. Actual speeds may vary and are not guaranteed. Multiple factors and considerations affect speed including without limitation; the number of workstations, terminal device(s) and other forms of hardware using a single connection to access the internet or wireless connections. TNC makes no representation, guarantee or warranty of any kind or nature regarding the suitability of TNC’s Services for any use other than for data, VoIP, and Internet Access as intended and defined in the Service Order and the TNC Acceptable Use Policy. Customer hereby agrees and acknowledges that Customer does not have the rights and ownership interest in any TNC obtained or owned IP Addresses, and upon termination of the Agreement, Customer agrees that all rights to access and right to use such IP Addresses shall terminate immediately. Additionally, Customer shall use all IP Addresses associated with Customer’s account under all guidelines of the TNC Acceptable Use Policy. If Customer is not in compliance with such use related to IP addresses, TNC has the sole right to halt, suspend and/or terminate Customer’s use of such IP address(es). Additionally, TNC shall have the right to change, reposition and/or modify any Customer IP address at any time and in any manner without prior notice to Customer.
4. Local Number Portability (LNP). The process of porting numbers must be scheduled in advance in order to provide continuity of service when switching between providers. TNC will coordinate with Customer on the timing of the port to TNC based on circuit and equipment availability. In the event that Customer’s site/service location is not ready for porting outside the connection and equipment provided by TNC, there may be charges incurred if porting is cancelled or supplemental before the number port occurs. A charge of $15 Non‐Recurring Charge (NRC) per telephone number may be incurred to Customer if the port is cancelled or supplemental more than 48 hours before the Confirmed Port Date. A charge of $95 Non‐Recurring Charge (NRC) per telephone number may be incurred to Customer if the port is cancelled or supplemental within 48 hours before the Confirmed Port Date. A Reinstatement/Snap‐Back charge of $650 per telephone number may be incurred to Customer if the port is cancelled within 24 hours of the Confirmed Port Date. A charge of $15 Non‐Recurring Charge (NRC) per telephone number may be incurred to Customer for any port‐out from TNC to any other service provider.
5. ACCESS TO PREMISES; HAZARDS
a) Access. On occasion, TNC may need access to Your premises and/or other premises that are not under TNC’s control (‘‘non‐TNC locations’’) to provide the Services. You agree to allow (or obtain permission for) TNC to access all non‐TNC locations (other than public property) and equipment reasonably required to provide the Services. Access includes the ability to review information and the right to construct, install, repair, maintain, replace, and remove access lines and network facilities, and to use ancillary equipment space within any building, necessary for Your connection to TNC’s network. You will furnish any conduit, holes, wire ways, wiring, plans, equipment, space, power/utilities, and other items required to perform installation of the Services, and obtain necessary licenses, permits and consents (including easements and rights‐of‐way).
b) Hazards. You shall ensure that all non‐TNC locations at which TNC installs, maintains or provides the Services is a suitable and safe working environment, free of any substance or material that poses an unreasonable risk to health, safety or property or whose use, transport, storage, handling, disposal, or release is regulated by any law related to pollution, protection of air, water, or soil, or health and safety. If TNC encounters any such hazardous materials at a location, TNC may terminate the affected Service or any affected Service Component or suspend performance until You remove the hazardous materials.
6. BEST EFFORT SERVICES. Not all Services have a Service Level Agreement (“SLA”). SLA’s provide guarantees of uptime and throughput on connections provided by TNC located only at the DEMARC. An example of a service that may come with an SLA would be any product that includes the word SLA on the service description and has a separate line item under that service that states SLA as a service in itself with a price attached to it. If there is no price attached or a price of $0.00 to the SLA product on the Service Order, then it was not elected by Customer at the time of ordering and therefore are a Best Effort service. All other products and services do not come with an SLA and therefore are Best Effort services. Speed and connectivity are based on network availability and can be influenced by a number of factors including, but not limited to, weather and/or network congestion. TNC is not liable for the consistency or availability, interruption, delay, degradation, transmission error, operational failure or any other error, failure, or other fault of Best Effort products that do not have an SLA.
a) TNC is not responsible for any Service interruption, delay, degradation, transmission error, operational failure, or unavailability at any location when TNC is not providing Customer Service to the Internet. TNC is not responsible for any Service‐related issue experienced by Customer and Customer shall not be entitled to any Service Credits as defined in Agreement and any other remedy, including without limitation, Customer’s right to terminate and/or cancel the Service in this instance.
b) TNC shall at its sole discretion agree to make commercially reasonable efforts to work with Customer to try to identify, address, and resolve any Service issue and support Customer in dealing with their Internet Service Provider. However, TNC is not able to guarantee the restoration of Service or resolve this issue on behalf of Customer in the event TNC is not providing Internet Services and Customer will not be relieved of its payment obligation to TNC in the event the Service issue is related to loss of connectivity with Customer’s Internet Service Provider.
7. EQUIPMENT & SOFTWARE
The Services may include use of certain equipment or product owned, leased, or controlled by TNC that is located at non‐TNC locations (‘‘TNC Equipment’’). Title to the TNC Equipment will not pass to You.
You must provide electric power for the TNC Equipment and keep the TNC Equipment physically secure and free from liens and encumbrances. You will bear the risk of loss or damage (other than ordinary wear and tear) to the TNC Equipment.
b. Software License. Software may be provided subject to the terms of a separate license between You and the licensor or the manufacturer. Your placement of an order for Software is Your agreement to comply with such separate agreement. All Software is provided “AS IS” without warranty of any kind.
8. PRICES; CHARGES; BILLING; PAYMENTS AND CREDITS; CHANGES TO AGREEMENT.
a) Prices and Surcharges. You agree to pay TNC for the Services at the prices and charges provided in the applicable Guidebook or Service Guide or Tariff, without deduction, setoff, or delay for any reason. The prices do not include, and You agree to pay, all applicable taxes, regulatory and other surcharges, recovery fees, shipping charges, and other similar charges specified or allowed by any governmental entity relating to the sale, use or provision of the Services. Taxes and government surcharges will be in the amounts that federal, state, and local authorities require or permit TNC to bill You. Unless a Service Publication specifies a different date, Your obligation to pay for a Service begins upon availability of the Service to You (“Cutover”),
b) Services and Rates. Initial rates for the Services are set forth on the page(s) of the Service Order or in any pricing forms or documents furnished to Customer, except where otherwise required by applicable law or provisions of this Agreement applicable to Services and/or term plans.
c) Price Changes. TNC reserves the right to, from time‐to‐time, change the price for a Service upon the following Notice: (i) the price of a Service may be decreased without further notice to You; (ii) TNC will provide Notice to You of a Service price increase at least 30 days prior to the effective date of the price increase. If You do not disconnect the affected Service by the effective date of the price increase, You will be liable for the increased price. The methods of Notice are described in Section 5.d. below, and TNC will select the method of Notice at its discretion or as required by law or regulation. TNC may revise the rates for service from time to time, without prior notice, to reflect changes in regulatory imposed fees, taxes, surcharges, service changes, and tariffs or otherwise. TNC reserves the right to move Customer to a different service or rate plan if usage or other criteria are not met for the plan to which Customer has subscribed or in which Customer currently is enrolled. Tariff rates may be applied depending on the carrier.
d) Changes Other Than Price. TNC reserves the right to, from time‐to‐time, change the terms and conditions of this Agreement other than a change in price (including changes to documents incorporated by reference) upon at least 30 days prior Notice of such a change.
e) Notice. When Notice by TNC is required, TNC will provide Notice by one of the following methods, and TNC shall solely determine at the time of the Notice which of the methods described here is appropriate: (i) posting the Notice on the TNC website at or near the posting location of the relevant Tariff, Guidebook or Service Guide; or, (ii) by bill insert or bill page message; or, (iii) by letter or postcard via U S. Postal Service to Your billing address; or, (iv) via a call to Your billed telephone number; or, (v) via an email to the email address You have provided. TNC may determine that it is appropriate under certain circumstances to provide Notice of a particular change via more than one of these methods, however, such multiple Notice is not required at any time. Your continued subscription to, usage of, or payment for the Service after the effective date of any change for which You have received Notice will be deemed Your acceptance of the change(s). You must contact TNC at the email shown on Your monthly billing statement prior to the effective date of the modification to discontinue the affected Service if You do not agree with the changes described in the Notice. YOU AGREE THAT NOTICE BY TNC BY ANY OF THE ABOVE METHODS IS SUFFICIENT.
f) Invoice Delivery. Unless otherwise agreed to in writing, all invoices shall be delivered electronically to the email address on file designated by Customer’s primary contact of Customer’s Account Customer agrees that it is their obligation to at all times keep current all account information as accurate and correct. Customer agrees that TNC invoices that may be sent to incorrect, obsolete, old and/or non‐updated email address do not relieve Customer from its payment obligation to TNC. Should Customer not make payment or otherwise become past due or in default, TNC, at its sole discretion, may elect to send current and future invoices via US Mail to the Service or Billing Address noted in the account. Customer agrees that TNC invoices that are undeliverable or otherwise not received by Customer do not relieve Customer from its payment obligation to TNC.
g) Billing. TNC will determine the billing period and may change it from time‐to‐time and without Notice to You. CHARGES BEGIN TO ACCRUE AT THE START OF EACH BILLING PERIOD AND CONTINUE THROUGH THE FULL BILLING PERIOD. Monthly recurring charges will be billed in advance, and You will be billed pro‐rata if the Service is installed or changed during the billing period. Usage based charges, such as those billed for calls, will be billed as used. For purposes of billing, calls will be rounded up to the next full minute for any fraction of minutes. FOR MONTHLY RECURRING CHARGES, YOUR FIRST BILL WILL INCLUDE CHARGES FOR THE PARTIAL MONTH IN WHICH CUTOVER OCCURRED AND ALL INSTALLATION CHARGES. Any mathematical error made by TNC or any of its representatives does not constitute an offer and thus may be corrected or modified by TNC. Any Service that is disconnected in the middle of or during a billing period shall not be refunded any pro‐rated charges for the unused portions of the billing period.
h) Invoice Frequency and Payment. Unless otherwise specified, Services are provided, and invoices are issued on a monthly basis for all Monthly Recurring Charges (“MRC”) actual usage of Service.
i) Payment and Disputes. Payment is due on the date specified on Your bill, or, as specified in the Tariff, Guidebook or Service Guide, whichever is later, or, if no date is specified, 30 days after the bill date. Restrictive endorsements or other statements on checks are void. Customer is responsible for paying the entire amount billed on the invoice, including reasonable disputed charges, whether or not documented in writing to TNC. Any dispute resolved in Customer’s favor shall be credited next bill. Any dispute resolved against Customer; Customer shall pay such amounts plus interest referenced below. TNC may charge a late payment fee for overdue payments in an amount specified in the applicable Tariff, Guidebook or Service Guide, or, if no such rate is specified, at 1.5% per month (18% per annum) or the maximum rate allowed by law. TNC has the right to also recover all costs, including but not limited to collection agency fees and attorneys’ fees, for collecting delinquent or dishonored payments. (i) In the event Customer has not provided payment to TNC within forty‐five (45) days from the date of invoice, TNC in its sole discretion has the right to disconnect Customer for non‐payment and declare Customer in default. Prior to disconnection of Customer account, TNC will attempt to collect the balance due and owed by Customer by any means that TNC deems necessary or sufficient.
j) Disputes. In the event of any dispute regarding a billing invoice, Customer shall notify TNC in writing within fifteen (15) calendar days of the invoice date. Thereafter, said invoice shall be deemed correct and binding. Customer shall not seek legal or equitable remedies, including, but not limited to, injunctive relief, which would require TNC to continue providing service to Customer. Customers with Toll‐Free numbers may be charged a $50 fee per change on each Toll‐Free number. Customer will be charged a fee of 10% of the Monthly Recurring Charges (MRC) plus $5.00 per telephone number associated with the account for reactivation of any service due to non‐payment. If TNC refers delinquent balance and/or Customer Account to an attorney or collection agency, Customer shall pay all costs of investigation, enforcement, and collection, including but not limited to interest, court costs, fees, attorney’s fees, collection agency fees. Notwithstanding the cancellation or natural expiration of the term of this Agreement, and to the fullest extent permitted by law.
k) Deposits, Credit Checks and Credit Limits. TNC may require You to pay a deposit as a condition of providing or continuation of Service. In no event shall Customer earn or otherwise receive any form of interest from a deposit held by TNC. TNC has the right to apply the deposit against any past due amounts at any time. Such deposit shall be held by TNC as security for payment of charges, and TNC may draw upon such deposit without any notice to Customer immediately when such account becomes past due. At such time as the provision of service to Customer is terminated, the amount of any unapplied deposit shall be credited to Customer’s account and any credit balance which may remain, shall be refunded without interest thereon. In the event Customer’s order is provisioned prior to completion of verification and credit check, said provisioning shall be deemed conditional and may be canceled immediately in the event of an unsatisfactory credit report or failure on the part of Customer to provide a required deposit. You authorize TNC to investigate Your credit and share information about You with credit reporting agencies. Based on Your credit worthiness as TNC determines it, TNC may set a credit limit on Your account at any time. If You exceed Your credit limit, TNC may restrict Your access to a Service(s). You shall provide TNC with credit information as requested. TNC reserves the right to withhold initiation or implementation of service under this Agreement pending credit review.
l) Service Credits. If there is an interruption or failure of a Service caused solely by TNC and not by You or a third party or for force majeure reasons described under Section 11.g., You may be entitled to a credit or credits as specified in the applicable Tariff, Guidebook or Service Guide.
m) Installation, Equipment and One‐time Fees. Any set‐up, installation, or equipment charges and subscription fees shall be paid at the time of or delivery of equipment or service or invoiced to Customer by TNC in either manner or form in the sole discretion of TNC. Any installation or equipment not paid for by Customer, its parent, subsidiaries, affiliates, related companies, contractors, partnerships, assigns, or third parties shall not pass title, interest, or rights to Customer until paid for to TNC plus any fees, interest charges, or other amounts owed and shall be considered property of TNC until such. In addition to any other rights or remedies available to TNC under applicable law, TNC shall have, and Customer hereby grants a lien to secure said property of TNC until satisfied by Customer. Such lien may be recorded by TNC at any time.
n) Billing Errors. TNC’s obligation with respect to any errors resulting in Customer overpayment for Service and/or equipment is limited to granting invoice credits equivalent to the dollar amount(s) of the overpayment. Under no circumstances will any billing error affect Customer’s obligation to pay for Services and/or equipment provided by TNC.
o) Unbilled Usage. At any time and for a period of no more than one hundred eighty (180) days from the date of any given Customer invoice, TNC in its sole discretion has the right to charge, and Customer agrees to remit payment for any and/or all charges attributed to Customer account, and also Customer phone numbers and calls which may have been unbilled but used by Customer. This includes but is not limited to actual usage, switched access charges, data charges, third party telecommunications providers or underlying carrier charges.
p) Back Billing. Under 47 U.S. Code § 415. Limitations of Actions; Section (a) Recovery of Charges by Carrier; TNC (as Carrier) has the right when, as applicable and at the sole discretion of TNC, to invoice Customer for and if necessary, seek all actions at law for recovery of their lawful charges, or any part thereof, which shall be begun within two years from the time the cause of action accrues, and not after.
q) Third Party Charges. Customer may incur charges from third party services that are separate and apart from the amounts charged by TNC. These may include, without limitation: Over the Top (OTT) charges, switched access fees from underlying carriers, soft phone fees, leases, installment plans, additional calling devices or plans which Customer may elect to use in connection with the Services offered by TNC, and/or calls resulting from Customer purchasing or subscribing to other offerings with other service providers via their Internet Connection. Customer agrees that all such charges, including all applicable taxes, are Customer’s sole liability and responsibility.
r) Taxes. Federal state, local, county, municipal, and other government or regulatory agencies may assess taxes, including, without limitation, excise, franchise, sales, value‐added and/or use tax, and real property taxes, surcharges or fees (“Taxes”) on Customers purchase, and use of Services, or equipment. TNC shall invoice Customer accordingly, by jurisdiction for any and all applicable taxes. Tax rates may change from time to time, with or without notice to Customer and Customer is responsible for the payment of all applicable Taxes in force and effect on Customer’s monthly invoice of taxes; which may be enacted and/or new in the future. Taxes are in addition to the charges paid for the Service and equipment. If and when Customer may be exempt from any or all Taxes; Customer must provide TNC with an original, valid exemption certificate that demonstrates Customer’s tax‐exempt status. Any Customer tax exemption(s) shall only be applicable from, and after, the date that TNC receives and accepts Customer exemption certificate. The imposition of, or increase in, any taxes shall not constitute a Service rate increase and therefore shall not give Customer a right to terminate this Agreement or any Service Order.
s) Fees. In addition to any taxes imposed by governments or regulatory agencies, TNC reserves the right, at any time to charge or increase various fees (“Fees”), including, without limitation: E911 Service fees, Service activation fees, Universal Service, Regulatory Recovery, and/or Cost Recovery Fees which may be considered as fees which recover costs associated with complying with Federal, State Public Service, or Public Utility Commission programs. These fees are subject to change at any time, without notice to Customer. The imposition of, or increase in, any fees shall not constitute a Service rate increase and therefore shall not give Customer a right to terminate this Agreement or any Service Order.
t) Professional Service & Technical Support Fees. Service calls shall be invoiced and are payable upon receipt of invoice. Service calls are assessed starting at TNC’s then prevailing rates for labor and related costs and commence from the time phone support or other support is engaged until the time the issue has been resolved. TNC does not undertake to correct or repair and shall have no responsibility for the correction or repair of, software, hardware, or equipment that TNC does not supply. Notwithstanding the above, TNC shall not be responsible for maintenance and repair of facilities or equipment which it does not furnish and TNC may assess Customer its standard charge (up to $150.00 or TNC’s then prevailing rate) for false service calls or call outs. In its sole discretion, TNC may elect to either repair or replace any affected equipment.
u) Sales and Service Credits. Customer’s sole and exclusive remedy to any form of requested refund shall be in the form of Service Credits. If TNC determines that Customer is entitled to receive Service Credit(s), the Service Credit shall apply to and appear on the following month’s invoice, and the Service Credit shall by deducted from the monthly invoice balance.
v) TNC 911/E911. Customer understands that all of TNC calling services are Internet based and that the emergency services calling capabilities associated with the Service are different from those offered by traditional providers of local telephone services. TNC VoIP calling services are not meant to be relied upon in the case of an emergency. While TNC attempts to provide access to emergency service, the TNC E911 VoIP Services feature is not intended to be used to support or carry emergency calls to any type of hospitals, law enforcement agencies, medical care units, or any other kind of emergency services. Customer should therefore maintain an alternative means of calling emergency services. Customer should not make excessive 911 calls. Excessive calls are classified as making more than three 911 calls per month for every 100 telephone numbers registered for 911. Should Customer make excessive 911 calls, there will be additional charges to access the system as well as additional charges for each excessive 911 call made. Additionally, Customer agrees that the TNC E911 disclosure shall be incorporated herein. w) Service Minimum. As certain considerations and discounts were extended based on the service term, as indicated on the pages of the Service Order, Customer must maintain all service quantities unless changes are agreed upon by both parties in writing. Customer agrees that should Customer not maintain all service quantities or term length, Customer shall be liable for any discounts extended to Customer by TNC.
9) TERMINATION AND SUSPENSION
a) Insolvency; Material Breach. TNC may discontinue providing You the Service(s) immediately upon notice to You if You become insolvent, cease operations, are the subject of a bankruptcy petition, or You have made an assignment for the benefit of creditors. TNC may terminate or suspend (and later terminate) an affected Service for material breach by You, if such breach is not cured within 10 days of notice.
b) By You. You may terminate this Agreement by disconnecting all the Service(s) provided under this Agreement with sixty (60) days advance notice. To disconnect the Services, You must contact TNC at the email provided on Your bill or by written notification with Customer’s requested date of cancellation and take all reasonable steps required by TNC to disconnect the Service(s) and shall be valid when accepted by TNC. If Customer’s requested cancellation date does not fall after a sixty (60) day advanced notice, then TNC shall adjust the cancellation date to be with sixty (60) days advance notice. If You subscribe to multiple Services that are provided under this Agreement, if You disconnect some but not all of the Services, this Agreement remains in effect for those Services that are not disconnected. Billing will cease thirty (30) days after the effective disconnected date. You are liable for all charges related to a Service until the Service is disconnected by You according to TNC’s standard practices. You may incur early termination charges pursuant to such provisions in the applicable Tariff, Guidebook, Service Guide, or as stated in this Agreement. You may also incur termination charges in the event of a breach by You, including nonpayment for services. Customer termination will not relieve Customer of any due, payable, and owed charges to TNC or any charges which may be owed as a termination fee for the remainder of the Service Order term for the actual Services, equipment or both ordered by Customer.
c) By TNC. TNC at its sole discretion may suspend, restrict, cancel, or terminate its relationship with Customer, or may take any of the aforementioned actions related to Customer’s use of the Services in general, at any time and immediately if, including but not limited to: (a) does not make full payment of all invoiced charges by the due date and fails to meet its payment obligations and consequently, Customer shall forfeit all telephone numbers associated with the account, (b) Customer violates any clause, term, condition, or article as stated in this Agreement and/or violates the TNC Acceptable Use Policy or any referenced or incorporated TNC policy or TNC document, (c) due to a change in any applicable law, or change in and/or by any of TNC’s underlying carriers and other Service providers and/or partners, (d) Customer resells the Services, (e) Customer’s use violates any trade and economic sanctions, regulatory or governing policy imposed by a U.S. State or U.S. governing agency and/or internationally, (f) if TNC decides to cease offering the Services to Customer in Customer’s jurisdiction, (g) if TNC is ordered by any law enforcement or other government agencies to suspend or terminate Service to Customer’s Account, (h) except to the extent prohibited by applicable law, Customer files a petition for bankruptcy or if a petition for bankruptcy is filed against Customer and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over any of Customer’s relevant property, (i) Customer brings any legal action or proceeding, including without limitation in any court, regulatory, or administrative body, arbitral body, or mediator, against TNC, its affiliated third parties and/or participates in any class action lawsuit against TNC, (j) TNC determines that the action of required to improve, maintain, preserve, or improve the delivery of Services to prevent misuse, fraud, or misappropriation, or to preserve the integrity of TNC in general, its agents, affiliates, related third parties or its customers; and, (k) TNC shall not be liable to Customer in any manner or any third party for any reason when taking actions to halt, cease, modify, suspend, restrict and/or terminate Customer’s Service, (l) if Customer is found to have breached the Confidential Clause as stated in this Agreement, (m) commit a fraud upon TNC, (n) utilize the Services to commit a fraud upon another party, (o) unlawfully use the Services, (p) abuse or misuse TNC’s network or Services, (q) interfere with another customer’s use of TNC’s network or services or, (r) any combination of the foregoing thereof. Further at the time of termination by TNC, Customer shall not be entitled to any refund, or disputed amount if applicable at the time of such action.
Effect. TNC shall effect such suspension, restriction and/or termination by preventing access to Customer Account, the Accounts which Customer may have purchased using a valid credit card, ACH, or third party billing, and Customer will not be able to access any of TNC Services upon termination of Customer’s relationship with TNC or if Customer effectuates cancellation of this Agreement not defined in the prescribed manner. Further all rights to use TNC equipment and the Services shall immediately terminate, and Customer agrees to immediately cease any and all use of the TNC Services.
Customer Default. TNC reserves the right to declare Customer in default in any instance specified above. Any act of Customer default accelerates payments to be due immediately. If Customer defaults, Customer is to pay TNC reasonable expenses, including but not limited to interest, court costs, fees, attorney’s fees, and collection agency fees, incurred in enforcing its rights under this Agreement.
d) Withdrawal of Service. TNC reserves the right to withdraw a Service upon reasonable Notice.
e) Network Changes. TNC reserves the right to suspend or interrupt Services at any time to make necessary changes in how we provide Services over our network and facilities to your premises. We will provide advance notice of these network changes to the extent required by this Agreement, applicable law and regulation. In some cases, such changes in how we provide Services may require a technician to be dispatched to your premises to install new network equipment and transfer your service to the new network equipment in order to ensure you continue to receive such Services. The network equipment we install at your premises may require the use of your electrical power for the operation of our facilities. Where a technician visit is required, if you do not allow TNC to install the new network equipment at your premises, your network service may be disconnected.
f) Liable for Payment. If any Service is terminated or disconnected for any reason, You are responsible for all charges and fees through the date of disconnect as well as any Early Termination Fees. If any Service is disconnected prior to the rendering by TNC of a billing statement, You may be liable for reimbursement to TNC for time and materials, and any third-party charges that were incurred by TNC prior to the effective date of disconnect.
h) Liquidated Damages and Early Termination Liability. In the event Customer cancels or terminates any Service under the Agreement prior to the end of the Service Term for its convenience, or TNC terminates any Service(s) as a result of a breach or when TNC declares Customer in default, Customer shall pay TNC all charges and fees for service, installation, technical support, and equipment provided through the effective date of such termination, plus 100% of the balance of the term’s Monthly Recurring Charges (MRC), any discounts, credits, or reimbursements extended to Customer by TNC as a result of a Service Term, plus any third‐party or local access provider termination liability or cancellation charges. It is agreed that estimating precise damages to TNC pursuant to this Agreement is a complex task and would be difficult or impossible to ascertain and that early termination liability and third‐party and/or local access provider cancellation charges paid by Customer to TNC constitute liquidated damages meant to offset losses incurred by TNC and are not a penalty. Termination of service shall not relieve Customer of its obligation to pay all fees or charges for service, installation, or equipment accrued and owing up to and including the date of termination or any other amount payable to TNC. In the event any and/or all of the aforementioned are not immediately paid to TNC, TNC has the right to and will seek other remedies available by law.
i) Reinstatement. If You ask TNC to reinstate a Service following a disconnection, cancellation, or termination, TNC may, in its sole discretion, require You to pay a deposit or other applicable charges, including installation charges in addition to all outstanding charges for the Service.
10. Fraud. Customer is responsible for all charges which may be attributable to Customer Account with respect to the Services related to fraudulent use of Service, even if incurred as a result of fraudulent or unauthorized use of the Services. Customer agrees to notify TNC immediately if it becomes away of any fraudulent or unauthorized use of any Service. TNC may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to Customer. TNC reserves the right to restrict, suspend, halt, modify and/or discontinue providing any and/or all Service(s) to Customer in the event of suspected or actual fraudulent or unauthorized use by Customer. TNC shall not be liable to Customer in any manner for any damages whatsoever resulting from fraudulent or unauthorized use of any Service in the event TNC exercises the right to restrict Customer’s use of Service.
11. Connectivity. Customer is responsible for ensuring that any equipment at Customer’s premises connected to the Service, regardless of whether such equipment is provided by Customer or TNC, is fully protected and therefore protected from any potential and/or actual fraudulent or unauthorized access and use.
12. Assistance. If necessary, and if requested by Customer, TNC will provide commercially reasonable assistance to
Customer in obtaining necessary facilities from the local telephone company through which Customer may use TNC service. Customer is responsible for such activity and is liable for any and all charges incurred therefore, whether directly billed by local telephone company or billed through TNC. Customer agrees that TNC may enter into any such documents or agreements on the behalf of Customer for which Customer shall be liable for, that are necessary for the enforcement or operation of this Agreement.
13. TNC Limited License Grant. TNC grants Customer a highly limited, personal only, non‐exclusive, non‐assignable, non‐transferable, license and fully revocable at the sole discretion of TNC. Such highly limited grant to use the equipment and any related software provided in conjunction with the delivery of TNC Services during the initial Term of the Service Order and subsequent renewal terms will be at all times used in strict accordance with these Terms and Conditions. Any TNC documents incorporated herein by reference and Service shall only and solely be for Customer’s own internal business use. In the event of any cancellation, termination or expiry of these Terms and Conditions and Customer’s non‐use of all license rights granted herein or in connection with any equipment, Software or any peripherals provided under this Agreement shall immediately terminate. Except as expressly provided herein, the highly limited license grant made by TNC to Customer does not in any many or way convey any form of ownership or other rights, express or implied to Customer, without limitation: (a) the Services, (b) any materials provided in connection with the Plan Services, and/or, (c) in and of any Intellectual Property.
14. TNC Intellectual Property Rights. Any Intellectual Property Rights in conjunction with the TNC Services, equipment, brands, logo, trademarks and/or word marks, or any Intellectual Property related to technology that is used in the provisioning of Services thereof are, and shall at all times remain, the exclusive and sole property of TNC, its related third parties, subsidiaries, affiliates, agents, and its licensors. All rights not expressly granted herein are reserved and retained by TNC and its third parties, subsidiaries, affiliates, agents and its licensors, and no Intellectual Property Rights or any other form or type of rights or licenses are granted at any time to Customer are assigned, granted, or transferred to Customer, its employees, affiliates, agents and independent contractors or any other party by estoppel, implication, or otherwise. Customer affirms, agrees, and acknowledges that misuse of TNC Services may violate third party Intellectual Property in the equipment and/or software provided that it is used in connection and Service delivery with the TNC Service. Customer is duly bound by the Confidential Article as stated herein these Terms and Conditions and therefore Customer may not disclose any Intellectual Property Rights in, and of the TNC Services and/or any equipment, software, program and/or Service functionally or delivery method related to same except as expressly contemplated by this section.
15. Customer License Grant. Customer hereby grants a worldwide, perpetual, royalty‐free license, right and permission to TNC to use any and/or all data and information submitted to TNC to perform the Services as provided for under this Agreement, Service Order, and any additional documents as incorporated herein by reference. Customer also hereby grants a worldwide, perpetual, royalty‐free license to TNC, its parent, subsidiaries, affiliates, related companies and any of their legal representatives, agents, licensees, permitees or assigns, to advertise and/or publicize the Property name, address, picture, images, or any other indicia of the Property identity or activity of any nature created, depicted, captured of, recorded by or at the direction of TNC (collectively “Materials”) in or in connection with any and all media of any kind and nature now known or developed in the future (collectively “Media”), in any manner, in any form without further notification, authorization or compensation to Customer or anyone acting on Customer’s behalf in furtherance of the marketing or advertising of TNC’s products and services. Customer understands that TNC may use all Materials at its sole discretion and Customer does not have any right to inspect or approve the use of the Materials in any Media.
16. Limitations of Service and Equipment. Customer may not be able to utilize the Service or equipment, if: (i) Customer equipment fails, (ii) the power required to operate Customer’s routers, modems, or any other equipment fails, (iii) Customer’s computer systems and network infrastructure experiences hardware or software problems and/or viruses, (iv) in situations where TNC is not the internet service provider and Customer’s internet service provider fails to provide adequate services for any reason, (v) Customer’s hardware or software is improperly installed, or, (vi) Customer is blocked or otherwise unable to access TNC network infrastructure. By using TNC Service and equipment, Customer agrees that the Service, equipment, and/or both may be limited in certain instances and may not be available 100% of the time. TNC will not be liable for errors in transmission or for failure to establish connections. Additionally, Customer acknowledges and agrees that the Service, equipment and/or both may not be compatible with Customer firewalls, fax machines, equipment, or network infrastructure.
17. Customer Responsibility. Customer is responsible for all internal wiring, Customer Provided/Owned equipment, installation of hardware and software on Customer’s equipment, and arrangement of access rights for TNC including space for cables, and equipment as necessary for TNC authorized personnel to install, repair, inspect, maintain, replace, or remove any and all equipment provided by TNC. Upon request by TNC, Customer, in good faith with its landlord, property manager, and/or building owner, and TNC or its affiliates, to secure written building access approval if and as required. Customer is responsible for ensuring that Customer equipment is compatible with the Service and the TNC network. Additionally, Customer shall ensure that upon access approval Customer permits the installation upon the premise’s location occupied by Customer of all equipment necessary to provide Service pursuant to this Agreement. Customer shall indemnify and hold TNC and its affiliates harmless from any claims of loss or damage to the premises by any third party, which claims are related in any way to TNC installation of equipment and provision of service.
18. Equipment. Customer agrees that any and all TNC equipment deployed to Customer’s service locations will remain the property of TNC. Customer shall not permit others to rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any equipment without the prior express written consent of TNC. Customer will be liable for any loss or damage to TNC’s equipment arising from Customer’s negligence, intentional act, or unauthorized maintenance. The equipment shall not be used for any purpose other than that for which TNC provides it. Customer agrees (which agreement shall survive the expiration or termination of these Terms and Conditions) to allow TNC full and complete access to remove its equipment or, at the request of TNC, Customer shall at its own expense and cost ship the equipment back to location that TNC designates and shall be liable for any missing, damaged, altered, or otherwise unreturned equipment not received by TNC. TNC may arrange to ship products or equipment to Customer. Title and risk pass to Customer when TNC’s designated shipper delivers products to the address Customer specifies. Customer must notify TNC of damaged or missing items from Customer’s order within three (3) days after Customer receives product.
a) Customer Owned Locations. If Customer owns, controls, or is affiliated with the ownership of the Property with respect to the provisioning or use of TNC Service or equipment and/or both under this Agreement, then Customer grants TNC a right and irrevocable license, coupled with an interest to: (i) offer, sell and distribute the Service to the Customer and/or additional services to prospective customers, other tenants, or end‐users, (ii) access the Property (including the right of ingress and egress to and from the Property), for the purposes of deploying (install, own, repair, operate, remove, improve, and maintain) its network, and/or other wire facilities, innerducts, conduits, raceways, moldings, Inside Wiring, network cabinets, and other related equipment capable of accommodating voice, data and video transmission and/or other services (“TNC Facilities”) at the property, and (iii) the right to market and provide its current and future services, to the Customer, to prospective customers, other tenants, or end‐users located at the property. “Inside Wiring” refers to the coaxial, category, fiber, or other cable wiring within beach building located on the Property, owned or controlled by the Customer, extending from the wall plate(s) to the lockboxes, communications closets or similar central distribution facilities where the Distribution System interconnects with such coaxial, category, fiber, or other cable wiring. Customer shall dedicate, convey, grant, or obtain and provide to TNC, at no cost to TNC, any such easements and rights of way over, under and across private property, both permanent and for construction purposes, as may be necessary to construct and permanently location, repair and maintain the TNC Facilities. TNC may elect to file such easements or rights of ways with the relevant local, state, or Federal agencies/departments to secure TNC’s rights and/or access at any time it deems necessary. Customer agrees that TNC may solicit and take orders for additional TNC Services from the Property’s other tenants or end users. Unless otherwise required by Laws or as limited herein, this section shall survive the termination of this Agreement.
19. Facility Provisioning. TNC shall have the right to provide and maintain TNC’s Facilities from its Central Office to the wireline voice/VoIP, internet and video (“TNC Wireline Services”) demarcation point(s) for the Property (“Demarc(s)”), including the Demarcs in the common and business use areas of the Property if Customer makes available the necessary space and power. All the TNC Facilities pursuant to this agreement and used at the Property by TNC, which are installed at TNC’s expense (whether by TNC or on its behalf), shall at all times during and after the Term of this Agreement be and remain the personal property of TNC and shall not be considered fixtures of the Property. Neither Customer, nor any third party shall have any rights in the TNC Facilities except as expressly granted in writing by TNC. If Customer provides Customer‐owned conduit in which TNC cables installed at the Property are placed, Customer shall do so at no cost to TNC pursuant to TNC specifications, including without limitation that TNC shall have the exclusive irrevocable right to use no less than one innerduct within the conduit. Customer shall require, through any agreements it enters into with, or access rights it provides to, other service providers, that such other service providers will not, in any manner, interfere with or impair the TNC services provided by TNC or otherwise cause damage to, or degradation of the quality or the privacy of, the TNC services provided over the TNC Facilities. Unless otherwise required by Laws or as limited herein, this section shall survive the termination of this Agreement.
20. Relocation of TNC Facilities. Upon the request of Customer, TNC shall relocate its TNC Facilities to another portion of the Property, provided that: (i) the proposed new area(s) are specifically identified, reasonably adequate for TNC’s purposes, and are mutually satisfactory to Customer and TNC; (ii) Customer shall pay any and all costs of such relocation via payment to TNC thirty (30) days following receipt of an invoice from TNC and (III) Customer shall, at the request of TNC, obtain all necessary permits and approvals for the relocation.
a) TNC may relocate its equipment and TNC Facilities, at its own request and expense, to another portion of the Property only with the prior, express written approval of Customer, not to be unreasonably withheld, conditioned, or delayed.
21. Right of Access. Customer will provide employees, agents, and contractors of TNC reasonable access, at no charge, to the Property. This access includes but is not limited to, (i) the right for TNC to deploy (install, own, repair, operate, remove, improve, and maintain) its wire or wireless facilities, innerducts, conduits, raceways, moldings, network cabinets and other related equipment capable of accommodating voice, data, and video transmissions and/or other TNC Services at the Property; (ii) the right to market and provide its current and future TNC Services to Customer, prospective customers, other tenants, or other end‐users at the Property and (iii) the right to clear the areas where TNC will be placing TNC Facilities and to keep the areas cleared of all trees and undergrowth including the right to trim and cut and keep trimmed and cut all dead, weak, leaning, or dangerous trees or limbs outside such areas which might interfere with or fall upon the TNC Facilities or power transmission or distribution equipment. Unless otherwise required by Laws or as limited herein, this right of access shall survive the termination of this Agreement.
a) Rooftop Rights. TNC is granted the right to access and use: (a) sufficient space on the roof of the building(s) of the Property, and (b) the underground portion of the Signal Distribution System, space in the main telecommunications closet and space in the vertical rise pathway at the Property to install, operate, and maintain satellite, radio and microwave and other transmission and reception devices (“Antennas”) and related wiring and equipment to be used for the purposes of providing DIRECTV Services and/or Additional Services, including but not limited to, broadband Internet access service, at the Property and other buildings (“Other Buildings”). The Antennas and all associated wiring and equipment constitute part of the Signal Distribution System as defined in this Agreement. The installation, maintenance, and operation of the Antennas and related equipment shall comply with all applicable local, state and federal laws, regulations, and licensing requirements, including FCC, FAA, OSHA, and building code requirements, and the Antennas and associated equipment shall be installed, operated and maintained in such fashion as to not adversely affect equipment, systems or machinery of the Customer or end-users. Customer agrees not to take any actions, or allow any third party to take any action that would adversely affect the equipment, systems or machinery which comprise the Antennas, including allowing any third party to install equipment subsequent to the Effective Date that interferes with the transmission or reception of the signals required to deliver the DIRECTV Service and Additional Services to the Property or to Other Buildings. TNC agrees that its exercise of Rooftop Rights shall not interfere with the transmission or reception of signals required to deliver other services in the Property. Upon termination or expiration of this Agreement, Customer agrees that TNC’s right to provide such services directly to end-users at Property and Other Buildings as described in this Section shall survive the termination of this Agreement for a period of sixty (60) months during which time TNC may exercise the Rooftop Rights described in this Section.
22. DISCLAIMERS OF WARRANTIES AND LIABILITY
a) Disclaimer of Warranties. TNC MAKES NO EXPRESS OR IMPLIED WARRANTY AND DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OR THOSE ARISING FROM USAGE OF TRADE OR COURSE OF DEALING. FURTHER, TNC MAKES NO WARRANTY THAT TELEPHONE CALLS OR OTHER TRANSMISSIONS WILL BE CORRECTLY ROUTED OR COMPLETED WITHOUT ERROR OR INTERRUPTION (INCLUDING CALLS TO 911). NO WARRANTY IS MADE BY TNC REGARDING INFORMATION, SERVICE OR PRODUCT PROVIDED THROUGH, IN CONNECTION WITH, TNC SERVICES AND ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. CUSTOMER AND ANY CUSTOMER USERS OR END‐USERS USE OF THE EQUIPMENT AND THE SERVICE IS AT CUSTOMER’S OWN RISK. TNC DOES NOT WARRANT THAT ANY SERVICE OR EQUIPMENT WILL OPERATE UNINTERRUPTED OR ERROR FREE. TNC DOES NOT WARRANT THAT ANY SERVICE WILL BE AVAILABLE ON A SPECIFIED DATE OR TIME OR THAT THE TNC NETWORK WILL HAVE THE CAPACITY TO MEET THE DEMAND OF CUSTOMER OR ANY USERS DURING SPECIFIC HOURS. FURTHERMORE, TNC MAKES NO WARRANTY REGARDING: (i) NETWORK SECURITY: (ii) THE ENCRYPTION EMPLOYED BY ANY SERVICE; (iii) THE INTEGRITY OF ANY DATA THAT IS SENT, BACKED UP, STORED OR LOAD BALANCED; (iv) THAT TNC’S SECURITY PROCEDURES WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO YOUR DATA; OR; (v) THAT SERVICES WILL BE UNINTERRUPTED OR ERROR‐FREE. TNC IS NOT LIABLE FOR ANY DAMAGES RELATING TO: (i) INTEROPERABILITY; (ii) ACCESS TO OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY YOU OR OTHERS; (iii) SERVICE DEFECTS; (iv) SERVICE LEVELS, DELAYS OR INTERRUPTIONS UNLESS SPECIFICALLY PROVIDED OTHERWISE IN THIS AGREEMENT; (v) ANY INTERRUPTION OR ERROR IN ROUTING OR COMPLETING CALLS OR OTHER TRANSMISSIONS (INCLUDING 911 CALLS); (vi) LOST OR ALTERED TRANSMISSIONS. (vii) UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS, OR DESTRUCTION OF YOUR OR OTHERS’ APPLICATIONS, CONTENT, DATA, NETWORK OR SYSTEMS.
b) Limitation of Liability:
TNC’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR DAMAGES ARISING OUT
OF THIS AGREEMENT AND NOT DISCLAIMED UNDER THIS AGREEMENT SHALL NOT EXCEED THE APPLICABLE CREDITS SPECIFIED IN THE SERVICE PUBLICATION OR, IF NO CREDITS ARE SPECIFIED, AN AMOUNT EQUAL TO NO MORE THAN ONE MONTH DOLLAR VALUE OF MONTHLY RECURRING SERVICE FEES ONLY TO YOU FOR SERVICE TO WHICH THE CLAIMED DAMAGES RELATE DURING THE PERIOD IN WHICH SUCH CLAIMED DAMAGES OCCUR AND CONTINUE, ONLY IF THE EVENT CUSTOMER EXPERIENCES A LOSS OF SERVICE DUE TO TNC WILLFUL FAULT, NEGLIGENCE, ACT, ERROR, OR OMISSION. IN ORDER TO RECEIVE A CREDIT, YOU MUST PROVIDE TNC WRITTEN NOTIFICATION AS DEFINED IN THE SERVICE OUTAGE CREDIT POLICY WITHIN FIVE (5) DAYS THAT THE CLAIMED DAMAGES OCCURRED OF THIS TNC TERMS & CONDITIONS OF SERVICE AND USE OF WHICH SERVICE CREDIT WILL BE APPLIED TO A FURTURE CUSTOMER INVOICE. IN NO EVENT SHALL ANY OTHER LIABILITY ATTACH TO TNC. THIS LIMITATION WILL NOT APPLY TO BODILY INJURY, DEATH OR DAMAGE TO REAL OR TANGIBLE PROPERTY DIRECTLY CAUSED BY TNC’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
c) TNC IS NOT AND WILL NOT BE LIABLE FOR ANY INTERNATIONAL ACT OR OMISSION, CUSTOMER NEGLIGENCE OR: (1) ACTS OF ANY THIRD PARTY COMPANY OR INDEPENDENT CONTRACTOR THAT OFFERS PRODUCTS AND SERVICES THROUGH THE SERVICE OR IN CONJUNCTION WITH THE SERVICE, (2) ANY ACT OR OMISSION OF ANY OTHER TELECOMMUNICATIONS PROVIDER OR SERVICE PROVIDER OTHER THAN THAT OF TNC, (3) INCORRECT OR INCOMPLETE DIRECTORY LISTINGS, (4) INCOMPLETE OR FAILED VOICE, TEXT OR EMAIL MESSAGES OR DROPPED CALLS, (5) ANY SOFTWARE OR PROGRAM THAT IS DOWNLOADED TO CUSTOMER EQUIPMENT, OR WHEN CUSTOMER DOWNLOADS SOFTWARE TO EQUIPMENT OR WHEN CUSTOMER INSTALLS ANY PRODUCTS TO EQUIPMENT (6) ANY USE OF THE SERVICE & EQUIPMENT REGARDLESS OF WHETHER IT IS AUTHORIZED USE OR NOT, (7) ANY FORM OF REPAIR OR INSTALLATION OF TNC EQUIPMENT, DEVICES OR PRODUCTS BY ANY THIRD PARTY WHO ARE NOT OUR ASSOCIATED THIRD PARTIES OR AGENTS WITHOUT THE PROPER SERVICE ORDER OR A FORMAL REQUEST MADE BY CUSTOMER TO TNC TO MAKE ANY REPAIR, (8) CUSTOMER OR ANY THIRD-PARTY MAY HAVE CHANGED, ALTERED, TAMPERED OR MODIFIED WITH THE SERVICES OR EQUIPMENT, (9) ANY HEALTH CLAIM WHICH ARE ALLEGED TO ARISE FROM THE USE OF THE EQUIPMENT OR OUR SERVICES OR OUR PRODUCTS INCLUDING BUT NOT LIMITED TO SLIP AND FALLS, CAR ACCIDENTS OR ANY OTHER TYPE OF ACCIDENTS WHILE USING OUR PRODUCTS AND SERVICES, (10) ANY DISRUPTION, FAILURE OR INTERRUPTION OF EMERGENCY SERVICES SUCH AS 911 OR E911 OR THE ACCURACY AND IDENTIFICATION OF PHONE NUMBER, ADDRESS OR PROPER NAME ASSIGNED OR ASSOCIATED WITH ANY PERSON OR INDIVIDUAL ATTEMPTING TO ACCESS OR ACCESSING EMERGENCY SERVICES FROM YOUR DEVICE, AND (11) LIABILITY FOR ANY INJURY OR DEATH ARISING OUT OF THE FAILURE TO REACH 911 OR EMERGENCY SERVICES PROFESSIONALS OR MISDIRECTED OR IMPROPERLY ROUTED OR MISROUTED 911 CALL, REGARDLESS IF THE CALL WAS ROUTED BY A PUBLIC SAFETY ANSWERING POINT (PSAP) OR AN OFFICIAL EMERGENCY DISPACTHER OR OPERATOR, IS NOT THE FAULT OR LIABILITY OF TNC, ITS NETWORK PROVIDERS, PARTNERS, AND ITS OPERATING COMPANIES OR AFFILIATES AND (12) CUSTOMER AFFIRMS, ACKNOWLEDGES AND AGREES THAT CUSTOMER WILL HOLD TNC, ITS NETWORK PROVIDERS, PARTNERS, AND ITS OPERATING COMPANIES OR AFFILIATES HARMLESS FROM ANY AND/OR ALL DAMAGES OR LIABILITIES, AND THESE LIMITATIONS APPLY TO ALL ALLEGED OR ACTUAL CLAIMS REGARDLESS OF IF THEY ARE BASED ON BREACH OF CONTRACT, PRODUCT LIABILITY, TORT, BREACH OF WARRANTY AND/OR ANY OTHER TYPE OF LIABILITY. INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, HACKING OF ANY KIND TO NETWORKS, SYSTEMS, IPPBX, PBX, PHONE SYSTEMS, ANY OTHER CUSTOMER SYSTEM OR INTERRUPTION, ELECTRICAL SURGE/DAMAGE/INTERFERENCE, IMPROPER GROUNDING, DELETION OF DATA, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, COMMUNICATIONS LINE FAILURE AND/OR CONNECTION FAILURE.
d) Consequential Damages. YOU WILL BE LIABLE TO TNC FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES.
e) Survival and Applicability. These disclaimers and limitations of liability will apply regardless of the form of action, whether in contract, tort, strict liability or otherwise and whether damages were foreseeable. These disclaimers and limitations of liability will survive failure of any exclusive remedies provided in this Agreement.
TNC and You (“We”) agree to resolve all disputes between us through binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, as modified by this provision unless such dispute is in regards to payments, late payments, or fees to TNC. This agreement to arbitrate is broad, and includes disputes of any type between TNC (including its subsidiaries, affiliates, agents, predecessors, successors, and assigns) and You (including authorized or unauthorized users/beneficiaries of services or devices) under this or prior agreements. WE AGREE THAT WE ARE WAIVING THE RIGHT TO A TRIAL BY JURY, TO PARTICIPATE IN A CLASS ACTION, OR TO SEEK REMEDIES BEYOND THE EXTENT NECESSARY TO PROVIDE INDIVIDUALIZED RELIEF TO, AND AFFECTING ONLY, TNC OR YOU ALONE. WE AGREE NOT TO ACT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED OR DE FACTO CLASS OR REPRESENTATIVE PROCEEDING, OR AS A PRIVATE ATTORNEY GENERAL OR ON BEHALF OF THE GENERAL PUBLIC. Except for matters relating to arbitrability or to the scope and enforceability of the arbitration provision or the interpretation of the limitations on class, representative, private attorney general, and non‐individualized relief, all issues are for the arbitrator to decide. A party seeking arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). Notice to TNC must be addressed to: Office of Dispute Resolution, TNC, 624 HOLLY SPRINGS RD., STE 409, HOLLY SPRINGS, NC 27540 (“Notice Address”). The Notice must (a) describe the basis of the claim or dispute; (b) describe the specific relief sought (“Demand”); and (c) provide Your TNC account number. If We do not resolve the claim within 30 days after receipt of the Notice, either of Us may commence an arbitration. The amount of any settlement offer made by TNC or You shall not be disclosed to the arbitrator until after the arbitrator determines the amount of any award on the merits.
Unless We agree otherwise, any arbitration hearings will take place in the county of Your billing address. TNC will pay all AAA filing, administration, and arbitrator fees for a claim brought by TNC. YOU ARE RESPONSIBLE FOR ALL COSTS THAT YOU INCUR IN THE ARBITRATION, INCLUDING BUT NOT LIMITED TO, EXPERT WITNESSES OR ATTORNEYS. IF THE ABRITRATION IS DECIDED IN TNC’S FAVOR, YOU AGREE TO REIMBURSE TNC FOR ALL FILING FEES, COSTS AND EXPENSES ADVANCED. You and TNC agree that a single arbitrator will resolve the dispute. Moreover, participating in arbitration may result in limited discover. If the arbitrator finds that Your claim or Demand is frivolous or is brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the payment of fees will be governed by the AAA rules and You agree to reimburse TNC for fees already paid by TNC that are Your obligation under the AAA rules.
If You complied with the notice procedures above; the value of Your claim or Demand is $25,000 or less; and the arbitrator awards You an amount greater than the value of TNC’s last written settlement offer made before an arbitrator was selected (or any amount if TNC made no offer), TNC will: ・Pay You the award or $1,000, whichever is greater (“Alternative Payment”); and
・Pay Your attorney, if any, the amount of attorneys’ fees and expenses (including expert witness fees and costs) that Your attorney reasonably accrues for investigating, preparing, and pursuing Your claim in arbitration (“Attorney Award”).
The arbitrator may rule on the payment of fees, expenses, and the Alternative Payment and Attorney Award during the proceeding and within 14 days after his/her final ruling on the merits. In assessing whether the award is greater than the value of TNC’s last written settlement offer, the arbitrator may consider only those attorneys’ fees or expenses that You incurred through the date of Your Notice and which had been awarded to You. You may also recover attorneys’ fees and expenses under applicable law, but You may not recover duplicative awards of attorneys’ fees or expenses.
This Agreement evidences a transaction in interstate commerce, and the Federal Arbitration Act governs. This arbitration provision survives termination of this Agreement. As the exclusive alternative to arbitration, TNC or You may commence an individual action in Small Claims Court. If a court rejects enforcement of any of the limitations on class, representative, private attorney general, or non‐individualized relief as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court. Notwithstanding any provision in this Agreement to the contrary, We agree that if TNC makes any future change to this arbitration provision (except a change to the Notice Address) during Your Service Commitment, You may reject any such change by sending TNC written notice within 30 days of the change to the Notice Address. By rejecting any future change, You agree to arbitrate any dispute in accordance with the language of this provision.
24. THIRD PARTY CLAIMS
A) By TNC. TNC agrees at its expense to defend or settle any claim against You and to pay all compensatory damages finally awarded against You where the claim alleges that a Service infringes any patent, trademark, copyright, or trade secret, except where the claim arises out of: (i) Your or a User’s content; (ii) modifications to the Service by You or third parties, or combinations of the Service with any services or products not provided by TNC; (iii) TNC’s adherence to Your written requirements; or (iv) use of the Service in violation of this Agreement. TNC may at its option either procure the right for You to continue using, or may replace or modify, the alleged infringing Service so that the Service becomes non‐infringing, or failing that, to terminate the Service without further liability to You.
B) By You. You agree at Your expense to defend or settle any claim against TNC, its affiliates, and its and their employees, directors, subcontractors, and suppliers, and to pay all compensatory damages finally awarded against such parties where: (i) the claim alleges that a Service infringes any patent, trademark, copyright or trade secret, and falls within the exceptions under Section 9 a (i) − (iv) above; or (ii) the claim alleges a breach by You or any User of a Software license agreement.
C) TNC’s obligations under Section 24.a. shall not extend to actual or alleged infringement or misappropriation of intellectual property based in whole or in part on Software.
25. IMPORT/EXPORT CONTROL. You, not TNC, are responsible for complying with import and export control laws, conventions and regulations for all equipment, software, or technical information You move or transmit between countries using the Services.
26. GENERAL PROVISIONS
a. Confidentiality and Privacy. Each party is responsible for complying with the privacy laws to which it is subject and will not disclose any confidential information pertaining to the other unless required to do so under applicable law or regulation. Until directed otherwise by You in writing, if TNC designates a dedicated account representative as Your primary contact with TNC, You authorize that representative to discuss and disclose Your customer proprietary network information to any employee or agent of Yours without a need for further authentication or authorization. During the term of this Agreement, Customer may be exposed to or receive information from TNC which is proprietary and/or confidential to TNC. Any and all such information in any context and/or form obtained by Customer, its employees, contractors, agents or related third parties; for during and in the provision and/or use of the Services, equipment, or the satisfaction of such party’s obligations under this Agreement, without limitation; including the financial terms of this Agreement, any Quotation for Service; any Quotation for equipment, installation or other related Quotations sent by TNC; Service Order, product, drawing, network, design map, business information, financial information, trade secrets, emails, know‐how and information regarding processes, shall be deemed to be the confidential and proprietary information (“Confidential Information”) of TNC. Customer shall: (i) hold all of TNC’s Confidential Information in strict confidence; (ii) disclose TNC’s Confidential information only to employees who have a direct need to know such Confidential Information and who are obligated to hold such Confidential Information in strict confidence; and (iii) not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, disclose such Confidential Information to third parties, or to use such information. Upon termination of this TNC Agreement all Confidential Information shall be returned to TNC or shall be immediately destroyed by Customer and Customer shall provide proof of destruction via notarized affidavit to TNC.
b. Equitable Relief. Customer agrees that any breach of TNC Intellectual property rights and/or violation of TNC Acceptable Use Policy and/or any confidential or privacy policies, provisions, or terms will cause TNC irreparable damage and harm for which monetary damages will be inadequate. Therefore, TNC may, in addition to other available remedies at in equity or at law, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement.
c. Independent Contractor Relationship. Each party is an independent contractor. Neither party controls the other, and neither party nor its Affiliates, employees, agents, or contractors are Affiliates, employees, agents, or contractors of the other party.
d. Binding Effect. This Agreement shall be binding on and inure to the benefits of the parties hereto and their respective heirs, legal or personal representatives, successors, end‐users, assigns and any User who uses the Services.
e. Assignment. This Agreement may not be assigned by Customer without the prior written consent of TNC unless provided below. TNC may (i) assign in whole or relevant part its rights and obligations under this Agreement to an affiliate, or (ii) subcontract work to be performed under this Agreement, but TNC will in each such case remain financially responsible for the performance of such obligations. TNC may assign this Agreement and the full Customer Account at any time to any entity without notification to Customer. Notwithstanding the foregoing, either party may, without the consent of the other party, assign or assume the agreement to an affiliate or subsidiary or to any person or entity that acquires all or substantially all of the assets of a party. Any attempted assignment or actual assignment without TNC’s consent, other than described in this section, shall be void and shall legally permit TNC to immediately terminate this Agreement without notice to Customer whereby all fees, charges, and applicable termination fees will be due immediately to TNC.
f. Indemnification. Customer shall, at its sole expense, indemnify, defend and hold harmless TNC, its officers, directors, employees, agents, subsidiaries, TNC‐affiliated companies, contractors, third party affiliates and agents, from and against any and all claims, demands, damages, expenses, losses, fines, penalties or liabilities arising from, relating to or as a result of: (i) any act, error, omission, fault, negligence, or misconduct of Customer or any User of the Service or equipment, (ii) any breach by Customer of any term or condition of any Service being used, or this Agreement, (iii) any claim by any employee or invited party of Customer other than a claim based on gross negligence or willful misconduct of TNC, (iv) any claim by any Customer or any other third party relating to, arising from or as a result of Customers’ use of the Service and equipment, or (v) violation of any law or regulation by Customer, Customers’ employee, contractor, agent, or related either directly or indirectly third party on behalf of Customer. Customer understands that this obligation of indemnification survives the expiration or termination of this Agreement.
g. Limitations. Any claim or dispute arising out of this Agreement must be filed within one hundred and eight (180) days after the cause of action arises, and the parties waive any statute of limitations to the contrary.
h. Variances. The Terms and Conditions of this Agreement shall prevail notwithstanding any variance with the Terms and Conditions of any order submitted by Customer or the terms of any other Agreement between Customer and TNC.
i. Release. Customer agrees to release, discharge, and hold harmless TNC from and against any and all liability relating to or arising from their acts or omissions related to any Account Ownership Dispute or in seeking to comply with any Request, Law or Legal Process.
j. Third Party Rights. This Agreement does not provide any third party (including Users) any remedy, claim, liability, cause of action or other right or privilege.
k. During the term of this Agreement, Customer or any of its affiliates will not, directly or indirectly, for their own account or for or on behalf of any other person or entity, whether as an officer, director, employee, partner, principal, joint venture, consultant, investor, shareholder, independent contractor or otherwise, hire or employ, or attempt to hire or employ, in any fashion ( whether as an employee, independent contractor or otherwise), any employee or independent contractor of TNC, or solicit or induce, or attempt to solicit or induce or take away, any of TNC’s employees, consultants, clients, customers, vendors, suppliers, or independent contractors to terminate their relationship with TNC or the other party.
l. No Waiver. A waiver or any term or condition of this Agreement by TNC must be in writing and signed by an officer of TNC. No single waiver of a term or condition shall be deemed a continuing waiver of the term or condition. Any failure to insist upon strict compliance with any of the terms or conditions of this TNC Agreement shall not be deemed a waiver of any other term or condition herein this Agreement and/or any other term of condition in the TNC Acceptable Use Policy, TNC E911 disclosure and/or any other TNC Program and policy documents which govern the use of the TNC Service.
m. Governing Law. The law of the State of the billing address of Your Service shall govern this Agreement except to the extent that such law is preempted by or inconsistent with applicable Federal Law. This Agreement is limited to Services provided in the United States.
n. Force Majeure. The Company shall not be liable for any loss or damage, delay, or failure in performance of any of the services or facilities furnished by the Company from causes beyond the Company’s control, such as fire; flood; lightning; earthquakes; power failures or blackouts; severe weather; explosions; wars or armed conflicts; national, state, or local emergencies; civil disobedience; rebellions or revolutions; quarantines, governmental action or order; shortage of labor or materials; labor disputes, strikes, or other concerted acts of workers (whether of the Company or others); embargoes and other similar governmental action; acts of God; acts of terrorism; acts of vandalism or acts beyond the reasonable control of TNC or acts otherwise known as “Force Majeure.”. TNC shall be excused from its non‐performance of affected obligations for so long as the circumstances prevail.
o. Interpretation of Agreement. This Agreement and any Service will be construed and interpreted fairly, in accordance with the plain meaning of its terms and use. There will be no presumption or inference against the party that has drafted this Agreement, its respective Terms and Conditions, the documents as incorporated herein by reference, or any Service Order in the interpretation and validity of any of the provisions contained in the aforementioned. In the event of any inconsistence between this Agreement, its respective Terms and Conditions and the Service Order, Agreement shall take precedence and apply.
p. Entire Agreement. This Agreement (which may include any other signed (including e‐signed) agreement with TNC that incorporates this Agreement by reference) and its respective Terms and Conditions constitutes the entire agreement between TNC and You concerning the Services and supersedes all other written or oral agreements. This Agreement may only be modified as set forth above, and in no case can be modified or supplemented by any other written or oral statements, proposals, service descriptions or purchase order forms.
q. Construction. The parties acknowledge that they have reviewed, and/or had the opportunity to review, the Agreement with counsel, and have had all of its terms explained to them to their full and complete understanding and satisfaction. They further acknowledge that this Agreement is the joint work product of the parties. Accordingly, in the event of ambiguities in this Agreement, no interferences shall be drawn against either party of the basis of authorship of this Agreement. You further affirm that you have full legal right, power, capacity, and authorization to effectuate, enter, and perform this Agreement, and that you are a valid business entity duly organized and existing by virtue of the laws of the state of its formation.
r. No Liens and Non-Disturbance Agreement. If the Customer or Property is currently encumbered by the lien of any mortgage, trust deed or other similar encumbrance, Customer hereby covenants and agrees to use its commercially reasonable, diligent efforts to provide TNC with a non-disturbance agreement (a “Non-Disturbance Agreement”), in form and substance agreeable to TNC, duly executed, acknowledged and delivered by Customer and the holder of such mortgage, trust deed or encumbrance, within thirty (30) days after the Effective Date or within ten (10) days from a request by TNC for such. Such Non-Disturbance Agreement may be recorded by TNC at any time. Owner shall specifically exclude the Signal Distribution System and/or any other TNC Facilities and/or TNC Wireline Services from any description of the Property or Customer pledged as security for any future indebtedness or obtain a Non-Disturbance Agreement signed by the lender in favor of TNC in connection therewith.
s. Severability. If any part of this Agreement is found to be illegal, invalid, or unenforceable, or should this Agreement contain an omission, then the rest of the Agreement remains enforceable. Instead of the invalid provision a valid provision is deemed to have been agreed upon which comes closest to what TNC intended; the same applies in the case of an omission. The foregoing does not apply to the prohibition against class or representative actions that is part of the Arbitration provisions above; if that prohibition is found to be unenforceable, the Arbitration clause (but only the Arbitration clause) shall be null and void.
t. Signatories. The Parties to this Agreement represent and warrant that they are familiar with this Agreement and with the negotiation and documents which preceded this Agreement and have the legal authority to enter into this Agreement. Original signatures transmitted and received via facsimile or other electronic transmission of a scanned document, (e.g., pdf or similar format) are true and valid signatures for this Agreement and shall bind the Parties to the same extent as that of an original signature. If Customer uses an electronic signature (“e-signature”), Customer understands and agrees that Customer is consenting to be legally bound by these terms and conditions of this Agreement as if Customer signed this agreement in writing. Customer agrees that no certification authority or other third‐party verification is necessary to validate their e-signature and that the lack of such certification or third‐party verification will not in any way affect the enforceability of the e‐signature or any resulting Agreement between Customer and TNC.
u. Priority of Terms of Signed Agreements. If You have another signed (including e‐signed) agreement with TNC that incorporates this Agreement by reference, the terms of that signed agreement shall have priority over the terms in this document, without regard to the fact that this document has been incorporated into an attachment to that agreement.
v. Priority of This Agreement and Incorporated Documents. Subject to Section 26.s. above, in the event of a conflict between the terms and conditions of this Agreement, the terms and conditions of a Guidebook, the terms and conditions of an applicable Service Guide or the terms and conditions of a Tariff, the following order of priority (descending) will be applied to determine which terms and conditions control: Tariff; Guidebook; Service Guide; and then this Agreement.
w. Headings. The headings in this agreement are for convenience of reference and shall not affect its construction or interpretation.