This Agreement is between you as our Subscriber (“Client” or “Customer” or “End-User” or “you” or “your”), and Key2IP and its affiliates (“Key2IP” or “we”), and it sets forth the terms and conditions under which you agree to use and we agree to provide the Service.

THIS IS A CONTRACT. PLEASE READ THESE TERMS CAREFULLY. IF YOU DO NOT AGREE TO THESE TERMS DO NOT USE THE SERVICE AND CONTACT US IMMEDIATELY TO TERMINATE IT.

The Effective Date of this Agreement shall be the date signed acceptance of this Agreement is received.

Acceptance by you of this Agreement occurs upon the earlier of: (a) Key2IP’s acceptance of a Service Order Form signed by you indicating your acceptance of this Agreement; (b) your acceptance of this Agreement electronically during an online order, registration or when installing the Software or the Equipment; (c) your use of the Service; or (d) your retention of the Software or Equipment we provide beyond thirty (30) days following delivery. If you change Service plans, your term and monthly rate may change (depending on the plan you select), but all other provisions of this Agreement will remain in effect unless otherwise noted.

Table of Contents

1. TERMS AND CONDITIONS 14. DISCLAIMER OF CONSEQUENTIAL DAMAGES
2. TERM 15. WARRANTY AND LIABILITY LIMITATIONS
3. EQUIPMENT 16. EXPORT COMPLIANCE
4. HOSTING 17. COPYRIGHT, TRADEMARK & UNAUTHORIZED USE
5. BILLING, CHARGES AND PAYMENT 18. SOFTWARE COPYRIGHT
6. ONE TIME CHARGES 19. SURVIVAL
7. LOST, STOLEN, ALTERED OR BROKEN 20. NOTICES
8. PROHIBITED USES 21. SERVICE ORDERS
9. TERMINATION 22. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL)
10. PRIVACY 23. GOVERNING LAW / RESOLUTION OF DISPUTES
11. TECHNICAL SUPPORT 24. AMENDMENT
12. BREACH 25. ENTIRE AGREEMENT
13. INDEMNIFICATION 26. INTERPRETATION OF AGREEMENT

1. TERMS AND CONDITIONS

The terms and conditions stated herein are in lieu of and replace any and all terms and conditions set forth in any documents issued by End-User, including, without limitation, purchase orders and specifications. Any additional, different, or conflicting terms and conditions on any such document issued by End-User at any time are hereby objected to by Key2IP, and any such documents shall be wholly inapplicable to any sale made or service rendered hereunder and shall not be binding in any way on Key2IP. No waiver or amendment to this contract or these terms and conditions shall be binding on Key2IP, unless made in writing expressly stating that it is such a waiver or amendment and signed by a duly authorized representative of Key2IP.

2. TERM

The term of this Agreement (“Term”) begins on the date that End-User purchases Services and continues monthly for the duration of the service period. At the end of the current Term, the Term is automatically renewed unless End-User provides Key2IP, prior to the end of the current Term, notification of intention to terminate the service. End-User agrees to pay for Services for the duration of the Term. Expiration of the Term does not alleviate End-User of responsibility for paying all unpaid, accrued charges due hereunder.

3. EQUIPMENT

In offering the Services, Key2IP may supply Equipment to End-User. All Equipment shipments are F.O.B. from Key2IP’s facility. Key2IP’s liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to End-User upon delivery to carrier. End-User will be provided with manufacturer’s warranty from the date of purchase of Equipment. End-User shall be required to obtain authorization from Key2IP to return any Equipment. Key2IP will replace Equipment only if the Equipment is deemed to be defective and covered under the warranty. Key2IP will not cover replacement for lost, stolen, mistreated or modified equipment. Equipment returned by End-User that is not covered under warranty may be refused by Key2IP, and End-User will be responsible to pay return shipping charges.

4. HOSTING

In addition to the terms provided in the All Services sections of this document, the following terms apply specifically to End-Users utilizing Key2IP’s Web Hosting Services.

Server Resources. Per the terms of Key2IP’s Master Service Agreement, should End-User’s website utilize an excessive amount of server resources (including, but not limited to, CPU processing time, memory usage and network resources) for a sustained period of time, Key2IP reserves the right to request that End-User either upgrade End-User’s web hosting service package or reduce End-User’s website’s use of resources to an acceptable level. Key2IP will be the sole arbiter of what is considered to be an excessive amount of server resources. Key2IP reserves the right to suspend or shut down any Web Hosting account deemed to adversely affect server performance or network integrity.

Spam. Key2IP strictly prohibits bulk, unsolicited email and related practices, as defined by Key2IP’s Master Service Agreement. Scripts. Scripts that pose a potential security risk and/or are deemed to adversely affect server performance or network integrity will be shut down or removed without prior notice.

IRC. Key2IP does not allow IRC clients or IRC bots to be hosted and operated on its web-hosting servers.

Content Restrictions. All content hosted on Key2IP’s servers are subject to Key2IP’s Master Service Agreement including, but not limited to, its sections concerning Acceptable Use. Key2IP servers may be used for lawful purposes only. Transmission, storage or distribution of any information, data or material in violation of any applicable law or regulation, or that may directly facilitate the violation of any particular law or regulation is prohibited. This includes, but is not limited to, Intellectual Property Rights Infringement, child pornography and material that constitutes an illegal threat or violates export control laws.

Modifications. Key2IP may modify from time to time, and in any way, without limitation, any data, software, or hardware used to provide End-Users with Key2IP’s services. Certain changes to Key2IP’s services may affect the operation of End-Users’ personalized applications and content. While Key2IP will work with its End-Users to provide proper notice of such changes, each End-User is solely responsible, and Key2IP is not liable, for any and all such personalized applications and content, except as expressly agreed to by Key2IP.

Backup of Data. End-Users are solely and entirely responsible for the management and backup of all End-User data, and all updates, upgrades, and patches to any software that End-Users use in connection with Key2IP services.

Non-Key2IP Products. Any mention of non-Key2IP products by Key2IP and its employees is for information purposes only and does not constitute an endorsement or recommendation by Key2IP. Key2IP disclaims any and all liabilities for any representation or warranty made by the vendors of such non-Key2IP products or services.

5. BILLING, CHARGES AND PAYMENT

5.1 BILLING

Upon purchase of the Service, End-User must provide a valid credit card number from an accepted issuer (American Express, Discover, MasterCard or Visa). End-User authorizes Key2IP to charge the End-User credit card number for all charges arising from End-User’s use of the Services. End-User agrees to notify Key2IP of any change to the credit card information including, but not limited to, changes in account number, expiration date or billing address. Key2IP shall not be responsible for any charges made by the credit card issuer to End-User’s credit card account for exceeding credit limit, insufficient funds or other reasons. An invoice detailing the summary of charges will be provided to End-User on a monthly basis by U.S. Mail or email specified by End-User.

5.2 CREDIT TERMS

All Services provided to End-User and covered by the Agreement shall at all times be subjected to credit approval or review by Key2IP. End-User will provide such credit information or assurance as is requested by Key2IP at any time. Key2IP, in its sole discretion and judgment, may discontinue credit at any time without notice.

5.3 PAYMENT

Upon purchase of the Service, End-User must provide a valid credit card number from an accepted issuer (American Express, Discover, MasterCard or Visa). End-User authorizes Key2IP to charge the End-User credit card number for all charges arising from End-User’s use of the Services. End-User agrees to notify Key2IP of any change to the credit card information including, but not limited to, changes in account number, expiration date or billing address. Key2IP shall not be responsible for any charges made by the credit card issuer to End-User’s credit card account for exceeding credit limit, insufficient funds or other reasons. An invoice detailing the summary of charges will be provided to End-User on a monthly basis by U.S. Mail or email specified by End-User.

5.4 LATE/NON-PAYMENT

If any charges for the Services are due but unpaid for any reason, including but not limited to, nonpayment or declined End-User credit card charges, Key2IP may suspend or terminate the Services and all accrued charges shall be immediately due. Services may be discontinued during business hours on or after the date specified in the Notice of Discontinuance. Service will not be initially discontinued on any Saturday, Sunday, legal holiday, or any other day Key2IP service representatives are not available to serve customers. Generally, Key2IP may disconnect service if any of the following applies: 1) if a condition dangerous or hazardous to like, physical safety, or property exists; 2) Upon order by any court, the commission or other duly authorized public authority; 3) If fraudulent or unauthorized use of service is detected and there is reasonable grounds to believe the affected customer is responsible for such use; 4) If equipment has been tampered with and there is reasonable grounds to believe that the affected customer is responsible for such tampering; and 5) If equipment is used in a manner disruptive to the service of other customers. Key2IP may charge End-User interest at 1.5% per month or the maximum allowable rate, whichever is less, on those charges and a late fee (to the extent allowable by law) of 10% of the past-due balance. If End -User fails to pay Key2IP within 15 days after the due date, Key2IP has the right to disconnect the Services without notice and/or send to collection. Key2IP has the right to recover all costs of collection including reasonable attorney’s fees from End-User. Upon disconnect, End-User agrees to immediately pay all amounts owed to Key2IP. Key2IP reserves the right to charge End-User a service fee of $35 reconnection fee per occurrence, per account. A valid credit or debit card will be required to reinstate service. If payment is not made in full within 60 days, Key2IP has the right to repossess the End-User Equipment to offset monies owed without liability for damage or trespass.

5.5 OTHER FEES

Key2IP will invoice, and End-User will pay fees for CPE, Devices, Site Surveys and other services as described in the Service Acceptance and/or Site Detail. All Key2IP Voice Services and seat packages are intended for individual use only. If multiple users are assigned or are otherwise using any single seat package, Key2IP may retroactively charge End-User for applicable subscriber fees for all users using such packages. Key2IP charges and End-User shall pay to Key2IP telecom usage and Service charges and fees in addition to other recurring Service and activation charges.

All usage-based fees such as international calling, directory assistance, operator assistance and inbound toll free calling shall be due the following billing cycle after use is incurred and charged at the prevailing rate.

5.6 PRICE CHANGES AND OTHER MODIFICATIONS

Key2IP may decrease prices without providing advance notice. Increases to the prices or charges for the Services (other than international calling) are effective no sooner than five days after Key2IP posts them on our web site at http://www.key2ip.com. Increases to charges that recover our costs associated with government programs are effective no sooner than 3 days after Key2IP posts the increases on our web site. International rates are subject to change without notice.

If Key2IP increases the monthly service fee (as distinct from long distance call charges, international call charges or Regulatory Compliance Fees) and End-User would be charged a cancellation or other fee to cancel that Service, or Key2IP modifies a material term of our Agreement with End-User and the modification would be materially adverse to End-User, Key2IP will notify End-User of the increase or modification (as provided herein) and End-User can cancel the Service without paying the cancellation or other fee (which is End-User’s only remedy) by following the cancellation instructions in the notice. If End-User does not cancel the Service by following the instructions in the notice, then End-User agrees to the increase or modification, even if End-User paid for Service in advance. If the notice does not say how long End-User has to cancel, then it is within 14 days after the date of the notice. If Key2IP increases charges for Service to which no cancellation or other fee to cancel service applies, Key2IP will notify End-User of the increase, but End-User will still be responsible for any cancellation fee applicable to any Services End-User may have if End-User cancels Service.

5.7 TAXES

Customer shall be responsible to pay any and all applicable national, federal, state, county and local taxes, fees, surcharges and all other related Charges that may be imposed or levied on Customer or KEY2IP by any appropriate statute or regulation which provides the authority for the imposition of taxes, fees, surcharges and all other charges (collectively, “Taxes”) with respect to the provision, sale or use of Services and/or equipment, in addition to all other fees and charges as set forth elsewhere in this Agreement. Notwithstanding the foregoing, Customer is not responsible for the payment of any type of tax levied on KEY2IP based upon (i) KEY2IP’s net profit or payroll, or (ii) franchise taxes measured by KEY2IP’s capital, capital stock or net worth. Taxes include, but are not limited to, business and occupation, commercial, deaf, district, excise, franchise fee, gross receipts, high cost fund, license, lifeline assistance, low income, occupational, privilege, property, Public
Utility Commission, right-of-ways, sales, telecommunications relay service, telephone assistance, universal service funding, use, utility user, value-added, 911, or other similar taxes, fees and surcharges as is or may be levied against KEY2IP and passed through to Customer.

When applicable, Customer shall furnish KEY2IP a valid and properly executed tax exemption/resale certificate(s) and/or a KEY2IP-approved statement of indemnification for any request of exemption from Taxes. Any exemption/resale certificate and/or KEY2IP-approved statement of indemnification shall be effective only for Services provided subsequent to the receipt of the exemption/resale certificate or statement of indemnification by KEY2IP. If any exemption claimed is disallowed, Customer agrees to indemnify, defend and hold harmless KEY2IP for any and all Taxes, interest and penalties, including all legal and collection fees or any other costs that may be assessed against KEY2IP or Customer by any authority or jurisdiction for which this exemption has been claimed by Customer.

5.8 CREDITS

End-User acknowledges and agrees that the Services are provided “as is, where is.” Credit allowances are under the sole discretion of Key2IP.

5.9 DISCOUNTS

From time to time in its sole discretion, Key2IP may offer promotions or discounts on activation or other fees. Any promotion or discount codes must be entered by End-User upon purchase of the Services. End-User shall not be entitled to a subsequent credit for such promotions or discounts, if not requested at the time of account creation or change of service.

5.10 BILLING DISPUTES

End-User must dispute any charges for the Services within thirty (30) days of receipt of the monthly online invoice or End-User waives any objection. Acceptance of late or partial payments (even if marked “Paid in Full” or with other such verbiage) shall not waive any of Key2IP’s rights to collect the full amount of End-User’s charges for the Service. Billing disputes should be directed to Key2IP in one of the following manners:

6. ONE TIME CHARGES

CHARGES ARE SUBJECT TO CHANGE AT KEY2IP’S SOLE DISCRETION. Please reference Key2IP’s website at http://www.key2ip.com for a full description of current charges.

Dispatch Time is charged per vendor discretion for time spent on site during a dispatch. Key2IP charges are $164 per hour, $119 additional hours.

Inside Wiring Fee of $125 for each cable.

$150 Missed Appointment Fee if there is no one present over the age of 18 at the scheduled time of the technician visit, and notification was not provided to Key2IP at least 2 business days in advance.

$150 No Access Fee if a technician is denied access to the phone closet (NID or Dmarc) due to a locked facility, or by the actions of others.

$25 Returned Payment Fee if a payment, in any form, is recovered or otherwise not paid by End-User’s financial institution.

Technician Dispatch Fee ($164 first hour, $119 addition hours) if a vendor technician dispatch is necessary to repair any non-Key2IP/non-vendor initiated changes to the on-site equipment or wiring that renders that device inoperable or unreachable by Key2IP remotely, hardware reconfigurations, or hardware repairs not covered under warranty. Additional repairs may be billed per vendor discretion.

7. LOST, STOLEN, ALTERED OR BROKEN

End-User shall not modify the Equipment in any way without the express written permission of Key2IP. End-User shall not use the Equipment except with the Services provided hereunder. End-User is responsible for all lost, stolen or broken Equipment and may be required to purchase a replacement to continue service, except as otherwise provided for hereunder. Replacement charges will be based on the fair retail price of equipment, plus applicable shipping costs and taxes. End-User shall immediately notify Key2IP of any lost or stolen Equipment and shall cooperate with Key2IP in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At Key2IP’s sole option, failure to report lost or stolen equipment in a timely manner will cause End-User to be responsible for all service fees accrued until the time that Key2IP is informed of the loss or theft and can effect a termination of the Services.

8. PROHIBITED USES

Any use of the Services or any other action that causes a disruption in the network integrity of Key2IP or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services. End-User understands that neither Key2IP nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. End-User agrees that it will NOT use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the network. End-User agrees and represents that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or make a charge for the Services or the Equipment without the advance express written permission of Key2IP. Use of service shall not include certain activities including, but not limited to, any autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, telemarketing or any other activity that would be inconsistent with residential or small business usage, unless specifically agreed to otherwise in writing by Key2IP and End-User.

9. TERMINATION

9.1 NOTICE

End-User agrees to provide Key2IP with thirty (30) days written notice of termination. End-User shall be responsible for the full monthly service fee for the month during which the notice of termination of service is provided to Key2IP.

9.2 RESERVED RIGHTS

Key2IP reserves the right, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason, including without limitation, misuse of the Services in any way, End-User’s breach of this Agreement, End-User’s failure to pay any sum due hereunder, suspected fraud or other activity by End-User that adversely affects the Services, Key2IP, Key2IP’s network or other End-Users’ use of the Services. Key2IP reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and End-User agrees that Key2IP’s determination is final and binding on End-User. Key2IP may require an activation fee to change or resume a terminated or suspended account.

9.3 TERMINATION CHARGES

End-User may terminate Service prior to the end of the Service Term upon thirty (30) days prior written notice to Key2IP (with sufficient detail necessary to identify the affected Service). In the event that, after either the original End-User Commit Date (if End-User requests and Key2IP agrees to a delay in delivery of a particular Service) or End-User’s receipt of the Connection Notice for a particular Service (whichever occurs first) and prior to the end of the Service Term, End-User terminates Service or in the event that the delivery of Service is terminated by Key2IP as the result of an uncured default by End-User of this Agreement, End-User shall pay Key2IP a termination charge equal to the sum of:

  • All unpaid amounts for Service provided through the date of termination;
  • Any third party cancellation/termination charges related to the installation and/or termination of any Off-Net Service;
  • The non-recurring charges for any cancelled Service, if not already paid;
  • For any On-Net Service, the percentage of the monthly recurring charges for the terminated On-Net Service calculated from the effective date of termination as 100% of the remaining monthly recurring charges that would have been incurred for the On-Net Service for months 1-12 of the Service Term, plus 50% of the remaining monthly recurring charges that would have been incurred for the On-Net Service for months 13 through the end of the Service Term.
  • The Parties acknowledge that the cancellation or termination charges set forth in this Section are a genuine estimate of the actual damages that Key2IP will suffer and are not a penalty.

End-User acknowledges that the cancellation or termination charges set forth are a genuine estimate of the actual damages that Key2IP will suffer and are not a penalty.

10. PRIVACY

Key2IP utilizes the public Internet and third party networks to provide voice and video communication services. Accordingly, Key2IP cannot guarantee the security of voice and video communications of End-User. Key2IP is committed to respecting End-User’s privacy. Once End-User chooses to provide personally identifiable information, it will only be used in the context of the End-User’s relationship with Key2IP. Key2IP will not sell, rent, or lease End-Users’ personally identifiable information to others. Unless required by law or subpoena or if End-User’s prior permission is obtained, Key2IP will only share the personal data of End-User with business partners that are acting on Key2IP’s behalf to complete the activities described herein. Such Key2IP entities and/or national or international business partners are governed by Key2IP’s privacy policies with respect to the use of this data. Upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, Key2IP may disclose personally identifiable information.

11. TECHNICAL SUPPORT

Key2IP will make available technical support to End-Users via telephone and e-mail for the Services and the Equipment provided. Support for other applications and uses is not provided or implied unless agreed to in writing by Key2IP and End-User.

12. BREACH

In the event of End-User’s breach of the terms of the Agreement, including without limitation, failure to pay any sum due hereunder, End-User shall reimburse Key2IP for all attorney, court, collection and other costs incurred by Key2IP in the enforcement of Key2IP’s rights hereunder and Key2IP may keep any deposits or other payments made by End-User.

13. INDEMNIFICATION

End-User agrees to defend, indemnify and hold Key2IP, its affiliates and its vendors harmless from any claims, damages and/or cost (including attorneys’ fees) resulting from End-User’s violation of this Agreement or any activity related to End-User’s account.

14. DISCLAIMER OF CONSEQUENTIAL DAMAGES

In no event shall Key2IP or its vendors be liable for any special, incidental, indirect, punitive or consequential damages or for any damages, including but not limited to loss of data, loss of revenue or profits, or arising out of or in connection with the use or inability to use services or products provided hereunder whether due to a breach of contract, breach of warranty, the negligence of Key2IP or its vendors or otherwise.

15. WARRANTY AND LIABILITY LIMITATIONS

Key2IP makes no warranties, expressed or implied, including, but not limited to, implied warranties of merchantability or fitness for a particular purpose. Neither Key2IP nor its vendors will be liable for unauthorized access to Key2IP’s or End-User’s transmission facilities or premise equipment or for unauthorized access to or alteration, theft or destruction of End-User’s data files, programs, procedures or information through accident, fraudulent means or devices, or and other method, regardless of whether such damage occurs as a result of Key2IP’s or its vendors’ negligence. Any claim against Key2IP must be made within 90 days of the event of the claim and Key2IP has no liability thereafter. Key2IP’s liability is limited to repair, replacement, credit or refund.

Key2IP may elect to provide a refund in lieu of credit, replacement or repair. All warranties cover only defects arising under normal use and do not include malfunctions or failures resulting from misuse, abuse, neglect, alteration, modification, improper installation, or repairs by anyone other than Key2IP. In no event shall Key2IP’s total liability hereunder exceed the amounts paid by the End-User to Key2IP in the prior twelve (12) months from the date of claim.

NOTWITHSTANDING ANY OTHER PROVISION HEREOF, KEY2IP SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF CUSTOMERS, LOSS OF DATA, INTERFERENCE WITH BUSINESS OR COST OF PURCHASING REPLACEMENT SERVICES) ARISING OUT OF THE PERFORMANCE OR FAILURE TO PERFORM UNDER ANY CUSTOMER ORDER OR THESE TERMS AND CONDITIONS INCLUDING BUT NOT LIMITED THOSE ARISING FROM KEY2IP’S FAILURE TO MEET AN INSTALLATION DATE (EXPEDITED OR OTHERWISE) REGARDLESS OF WHETHER KEY2IP HAS BEEN INFORMED OF THE POSSIBILITY OF THE LIKELIHOOD OF SUCH DAMAGES.

16. EXPORT COMPLIANCE

End-User agrees to comply with U. S. Export laws concerning the transmission of technical data and other regulated materials via the Services. End-User agrees to comply with applicable local, state and federal regulations governing the locality in which the Equipment and Services are used.

17. COPYRIGHT, TRADEMARK & UNAUTHORIZED USE

All Services, information, documents and materials on Key2IP’s website(s) are protected by trademark, copyright, patent and other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) of Key2IP are and shall remain the exclusive property of Key2IP and nothing in this Agreement shall grant End-User the right or license to use any of such marks.

18. SOFTWARE COPYRIGHT

Any software used by Key2IP in connection with the Services and any software provided to End-User in conjunction with providing the Services are protected by copyright law and international treaty provisions. End-User may not copy the software or any portion of it.

19. SURVIVAL

The provisions of sections 3, 10, 11, 12, 13, 15, and 16 shall survive any termination of the Agreement.

20. NOTICES

Key2IP communicates with its Clients primarily via email. Notices to End-User shall be sent to the email address specified by End-User at the time of registration for the Services or as subsequently specified by End-User (“Email Address”). End-User is responsible for notifying Key2IP of any Email Address changes. End-User agrees that sending a message to the Email Address is the agreed upon means of providing notification. Email is used to communicate important information about the Services, billing, changes to the Services and other information. The information is time-sensitive in nature. It is required that End-User read any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Services provided hereunder.

21. SERVICE ORDERS

By signing a Terms of Services Acceptance Form, End-User agrees to pay all charges incurred on End-Users Key2IP account(s) as described therein and any applicable Regulatory Compliance Fees and all applicable government mandated taxes, fees, and/or surcharges, or similar liabilities, by the stated due date and to adhere to all of the terms and conditions stated in the Key2IP Master Service Agreement and its Addendum(s), and promotional offerings and the terms and conditions included with the Service Order and its Appendices (collectively the “Agreement”) which are hereby incorporated by reference. End-User also authorizes Key2IP to obtain any credit information necessary and/or End-User proprietary network information, necessary to provision the Key2IP Service and to establish this Key2IP account, and authorizes release of said information by any and all third parties to Key2IP. Further, End-User represents that he/she is authorized to approve and accept the responsibility of the terms and conditions therein.

All initial upfront charges are due and payable by End-User according to the terms and conditions of the Service Order. Delays in payment may result in Service activation delays. Service Order may not reflect all applicable Regulatory Compliance Fees and government mandated taxes, fees, and/or surcharges, or similar liabilities that may be applicable to the Services or the hardware which End-User will be responsible for paying.

Upon receipt of the Service Order executed by End-User, if Key2IP determines, in its sole discretion, to accept the Service Order, Key2IP will return a copy of the Service Order fully executed with Key2IP’s representative’s signature. Key2IP will become obligated to deliver ordered Service subject to the Master Service Agreement, its Addendum(s) and the Service Order only if Key2IP has returned to End-User a copy of the Service Order fully executed with Key2IP’s representative’s signature.

22. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL)

Key2IP shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties of Key2IP that may occur in spite of Key2IP’s best efforts.

23. GOVERNING LAW / RESOLUTION OF DISPUTES

23.1 Mandatory Arbitration

Any dispute or claim between End-User and Key2IP arising out of or relating to the Service or Equipment provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitrator’s decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to:

  • award relief in excess of what this Agreement provides; or
  • award punitive or exemplary damages. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and End-User will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. End-User acknowledges that this arbitration provision constitutes a waiver of any right to a jury trial. All arbitration will take place exclusively in San Diego California.

23.2 Governing Law

The Agreement and the relationship between End-User and Key2IP shall be governed by the laws of the State of California without regard to its conflict of law provisions. End-User and Key2IP agree to submit to the exclusive jurisdiction of the courts located within the state of California for purposes of entering any arbitration award hereunder or for any other litigation hereunder. The failure of Key2IP to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. End-User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

24. AMENDMENT

This Agreement, and any Service Addendum or Service Order, may only be modified or supplemented by an instrument in writing executed by a duly authorized representative of each party if by End-User, or by notice from Key2IP as described herein if by Key2IP. Without limiting the generality of the foregoing, any handwritten changes to a Service Order shall be void unless acknowledged and approved in writing by a duly authorized representative of each party.

25. ENTIRE AGREEMENT

The terms and conditions of this Agreement constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services. This agreement shall be binding upon the heirs, successors, and assigns of Key2IP and End-User.

26. INTERPRETATION OF AGREEMENT

No provision of this Agreement will be interpreted in favor of End-User or against Key2IP by reason of the fact that Key2IP has drafted this Agreement.