These Terms and Conditions, entered into and effective as of the date signed between RingSquared Telecom LLC, a Delaware limited liability company (“RingSquared”) and the customer (“Customer”), and further referred to herein each as a “Party” and collectively as the “Parties”.
In consideration of the mutual benefits and covenants herein, and other good and valuable consideration, intending to be legally bound hereby, the Parties hereby agree as follows:
1. Services. RingSquared agrees to provide to Customer products and services (collectively “Services”) as described in a service addendum (“Addendum”) and as may be further defined in a service order (“Order”). The Services provided by RingSquared are subject to the terms and conditions contained in this document and any related Addendum and/or Order. This includes any Addenda and Orders, collectively defined as the “Agreement”. In the event of a conflict between the components of this Agreement, the following order of precedence will prevail: (1) the Order; (2) the Addendum; then (3) the Service Agreement.
2. Term. The “Effective Date” is the date set in the Service Order and executed on the date of the signed Service Order, and shall continue for a period based on the term that is set within the signed Service Order. Upon expiration of the Initial Term, this Service Agreement shall automatically renew for a term equal to the initial term unless terminated by either Party upon sixty (60) days’ prior written notice. Notwithstanding the foregoing, this Service Agreement shall remain in force so long as RingSquared continues to provide any Services under any Addendum or Service Order.
3. Termination.
A. Termination for Convenience. Customer may terminate any Addendum or Order upon sixty (60) days prior written notice to the other Party, subject to Subsection 3(C).
B. Termination for Cause. Either party may terminate the Service Agreement, any Addendum and/or any Order for default upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party: (i) Breaches any material term of the Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after the date of such written notice of such breach; (ii) Becomes insolvent or admits its inability to pay its debts generally as they become due; (iii) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) days or is not dismissed or vacated within forty-five (45) days after filing; (iv) Is dissolved or liquidated or takes any corporate action for such purpose; (v) Makes a general assignment for the benefit of creditors; or (vi) Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
C. Early Termination Fee. Upon Customer’s termination for convenience or RingSquared’s termination for cause, Customer shall pay RingSquared: (i) all charges for Services provided through the effective date of such termination; and (ii) if any Service is subject to a minimum monthly commitment or monthly recurring charge and that Service is terminated prior to the expiration of the applicable then-current term, then Customer shall be obligated to pay to RingSquared an early termination fee (“Early Termination Fee”) in an amount equal to the aggregate sum of each such Service’s minimum monthly commitment or monthly recurring charge, times the number of months remaining of the applicable term. It is agreed that RingSquared’s damages would be difficult or impossible to ascertain, therefore, the Early Termination Fee defined in this Subsection is intended to establish liquidated damages and is not intended as a penalty.
4. Charges and Payment Terms.
A. Charges. Customer is responsible for paying RingSquared for all Services, and related additional charges, provided under the Agreement.
B. Invoices; Payment. Customer shall pay RingSquared for Services in U.S. Dollars. Services shall be billed at the rates and pursuant to terms set forth in the Agreement. Customer shall pay all undisputed bills within thirty (30) days of date of the invoice (“Due Date”), unless otherwise specified in an Addendum or Order. If payment is not received by RingSquared on or before the Due Date, then Customer shall pay a late fee at the monthly rate of one and one-half percent (1.5%) on the unpaid balance or the maximum lawful rate under applicable law. Notwithstanding the foregoing, RingSquared shall not assess late fees on disputed balances that are resolved in Customer’s favor.
C. Billing Disputes. If Customer has a good faith basis to dispute any invoice, Customer shall provide RingSquared with written notice describing disputed amounts in reasonable detail including all documentation as may be reasonably required to support Customer’s position with respect to the dispute. Notwithstanding the foregoing, the risk of fraud shall be borne solely by Customer, and fraudulent use of services shall not be considered a good faith basis to dispute charges on any invoice. All disputes must be submitted to RingSquared within forty-five (45) calendar days of the date of the first invoice containing the disputed charges. Any invoice that is not disputed within forty-five (45) calendar days of its issuance will be considered final and accepted by Customer. Customer shall timely pay the undisputed portion of amount invoiced. Any delay in payment of the undisputed portions an invoice shall result in the assessment of late payment charges as specified in Section 4(B) of this Service Agreement and/or suspension or termination of Services as specified in Section 4(D) of this Service Agreement. The risk of fraud shall be borne solely by Customer. Customer shall pay RingSquared for all charges for Services regardless of whether the purchase and /or usage of the Services were fraudulent. Disputed amounts resolved in Customer’s favor shall be credited to Customer’s next regular invoice. Disputed amounts resolved in RingSquared’s favor shall be paid by Customer to RingSquared within seven (7) days.
D. Payment Default. In the event charges due pursuant to any invoice are not paid in full by the Due Date (“Payment Default”), RingSquared shall have the right to suspend all or any portion of the Services to Customer immediately until such time as Customer has paid in full all charges then due, including any late fees and/or service restoral fees, and to modify payment terms or require additional security to be provided by Customer in order to restore or to continue to provide Services. Failure to timely pay amounts due pursuant to the Agreement shall constitute a material breach. Notwithstanding Section 3(B) of this Service Agreement, Customer shall have seven (7) days after the date of written notice to cure non-payment.
5. Taxes and Regulatory Charges.
A. Additional Charges. Customer acknowledges and understands that RingSquared computes all charges herein exclusive of any applicable federal, state or local use, excise, gross receipts, sales and privilege taxes, duties, fees or similar liabilities (other than general income or property taxes), foreign taxes and governmental assessments, Federal Universal Service Fund assessments, value-added taxation, and withholding taxes in foreign jurisdictions whether charged to or against RingSquared or Customer because of the Services furnished to Customer (collectively “Additional Charges”). Unless Customer provides a valid exemption certificate in a form acceptable to RingSquared prior to the delivery of Service, Customer will be responsible to pay such Additional Charges that RingSquared is required or permitted to invoice to Customer in connection with any Service. Customer acknowledges and agrees that it is the Customer’s sole responsibility to provide RingSquared with valid exemption documentation.
B. Exemption Certificates. Exemption certificates accepted by RingSquared shall be effective upon receipt, and RingSquared reserves the right to require the submission of updated certifications for such exemption to remain effective. Notwithstanding any limitations under Section 4(C) of this Agreement, if RingSquared does not collect Additional Charges because Customer has provided RingSquared with an exemption certificate that is later found to be inadequate by RingSquared or by an applicable authority, then, notwithstanding RingSquared’s prior acceptance of the exemption certificate, Customer shall be liable for such (i) uncollected amounts and any interest and penalties assessed with respect to such uncollected amounts as determined by RingSquared or the applicable authority, and (ii) RingSquared’s reasonable expenses and attorneys’ fees incurred in the event of any related proceeding with an applicable authority. Customer agrees to indemnify and hold harmless RingSquared for any costs incurred by RingSquared as a result of actions taken by any applicable authority to recover the tax or surcharge from RingSquared due to the failure of Customer to timely pay, or collect and timely remit, to such authority.
C. No Withholding. All payments made by Customer will be made without any deduction or withholding for or on account of any Additional Charges. If Customer is or was required by law to make any deduction or withholding from any payment due to RingSquared under this Agreement, then, notwithstanding anything to the contrary contained in the Agreement, the gross amount payable by Customer to RingSquared will be increased so that, after any such deduction or withholding for Additional Charges, the net amount received by RingSquared will not be less than that amounts invoiced by RingSquared, had no such deduction or withholding been required. If any taxing or governmental authority asserts that Customer should have made a deduction for withholding for or on account of any Additional Charges with respect to all or a portion of any payment made under the Agreement, Customer agrees to indemnify RingSquared for such Additional Charges attributable to Customer and to hold RingSquared harmless on an after-Additional Charges basis from and against any Additional Charges, interest or penalties levied or asserted against them in connection therewith.
6. Credit. RingSquared reserves the right, and Customer consents, to review of Customer’s creditworthiness from an established credit company from time to time. RingSquared reserves the right to withhold initiation or full implementation of any or all Services under the Agreement pending RingSquared’s initial satisfactory credit review and approval thereof which may be conditioned upon terms specified by RingSquared, including security for payments due hereunder in the form of a cash deposit or other means. RingSquared reserves the right to modify its requirements, if any, with respect to any security or other assurance provided by the Customer for payments due hereunder in light of Customer’s actual payment history and projected usage levels.
6a, Deposit. The customer may be expected to pay a deposit in advance of services in the amount estimated to be equivalent to one month’s service. This deposit will remain on account and the amount will be reviewed and may be adjusted to match the monthly billing as required.
7. Compliance with Laws & Regulations; Acceptable Use.
A. Applicable Law. Each Party shall operate its business in compliance with all applicable treaties and international, federal, state and local, laws, ordinances, regulations, and other rules pertaining to the use of the Services (“Applicable Law”). Customer’s failure to comply with any Applicable Law shall be a material breach of Agreement. RingSquared intends to comply with all applicable FCC mandates, rules, and regulations.
B. Unauthorized Use. Customer will use best efforts to prevent unauthorized, illegal, or fraudulent use of the Services, and shall terminate any unauthorized, illegal, or fraudulent user access and immediately notify RingSquared of any such unauthorized, illegal, or fraudulent use, attempted use of, or access to, the Services. Although RingSquared monitors traffic for traffic affecting network integrity, including but not limited to suspicious and/or fraudulent use, RingSquared has no obligation to prevent, monitor, notify, or actively seek facts or circumstances indicating any fraud, abuse or illegal activities. RingSquared may, in its sole discretion, suspend Service at any time if it discovers or reasonably suspects any abuse, including but not limited to fraudulent activity.
C. Security. Customer is solely responsible for implementing security measures necessary to protect access to and/or use of its equipment (including any equipment provided by RingSquared in conjunction with the Services unless otherwise specifically agreed in writing), software, data, networks and systems located at Customer’s locations or otherwise in Customer’s control and used in connection with the Services, whether owned, licensed or otherwise held by Customer, RingSquared, or third parties (“Security”). Customer will ensure all security measures with respect to Customer’s locations, including but not limited to firewall security policies, even if Customer uses a third party or RingSquared to configure and implement such measures. Without limiting anything in the foregoing, Customer shall be solely responsible for any and all charges incurred as a result of any fraudulent access to and/or use of its equipment (including any equipment provided by RingSquared in conjunction with the Services unless otherwise specifically agreed in writing), software, data, networks and systems.
D. Content. Customer is solely responsible for (a) the content of information and communications transmitted using the Services, and (b) use and publication of communications and/or information using the Services.
E. Cooperation. If any third Party or regulatory agency imposes reporting or other compliance obligations on RingSquared in connection with Customer’s or its end users’ use of Services, Customer will cooperate and assist RingSquared in complying with those obligations and requirements and shall hold RingSquared harmless for any failure by Customer to do so.
F. Anti-Corruption and Export Controls. Each Party shall perform its obligations under this Agreement in a commercially reasonable, ethical and professional manner and in accordance with applicable legal requirements, including, as applicable, without limitation, (i) all applicable anti- bribery laws and regulations (including without limitation, the U.S. Foreign Corrupt Practices Act) and (ii) all export control laws and regulations (including those promulgated by agencies of the United States Government, including the U.S. Departments of Commerce and Defense), which prohibit the export or diversion of goods to certain prohibited countries.
G. Acceptable Use. RingSquared’s Acceptable Use Policy, found on RingSquared’s website at www.ringsquared.com. RingSquared reserves the right to make modifications to this policy at any time. Customers may request updates by contacting https://www.ringsquared.com/contact-us/. RingSquared may suspend or terminate Services which it determines in its sole discretion to be a violation of any applicable law or regulation, violates RingSquared’s Acceptable Use Policy or otherwise disrupts or jeopardizes RingSquared’s network.
8. Disclaimer.
Customer agrees and understands that RingSquared and its affiliates exercise no control over the content accessible via the Services. Customer assumes total responsibility for Customer’s (including its own end users and third parties, if applicable) use of the Services, whether or not the uses are authorized. Customer and end user, if applicable, access the Services at their own risk. Except as expressly set forth in the Agreement, the Services and any related software and/or hardware RingSquared or its affiliates provides are provided on an “as is” and “as available” basis without warranties of any kind, either express, implied, written, oral, statutory, or implied warranties of merchantability, fitness for a particular purpose or non-infringement. Neither RingSquared nor its affiliates warrant that the Services are completely error free or that the Services will operate without loss or interruption.
9. Limitation of Liability.
Except for any claim of intellectual property infringement indemnification obligations, to the maximum extent permitted by law, in no event shall either Party, its affiliates or any officers, directors, employees or agents of either Party be liable for any indirect, special, punitive, incidental or consequential damages, including but not limited to lost profit or revenues, lost data or cost of procurement of substitute Services related to the Services or the Agreement whether for, among other things, breach of warranty, and whether under any theory or cause of action whether in tort, contract or otherwise, regardless of whether the Party had been advised of the possibility of such damages. Neither Party’s total aggregate liability hereunder shall in no event exceed an amount equal to one (1) month of Service charges paid to RingSquared by Customer, calculated as an average based on the preceding six (6) months prior, for the affected Service that gave rise to the liability. Notwithstanding anything to the contrary herein, Customer’s liability for RingSquared claims subject to sections 4 and 5 shall not be limited. Both Parties hereby waive any claim that these exclusions deprive it of an adequate remedy or cause the Agreement to fail of its essential purpose.
10. Indemnification.
A. By Customer. Customer will indemnify, defend and hold harmless RingSquared and its affiliates and their owners, parents, affiliates, subsidiaries, agents, directors, managers, members, shareholders and employees from and against all judgments, orders, awards, claims, damages, losses, liabilities, cost and expenses, including, but not limited to, court costs and reasonable attorney’s fees (collectively, “RingSquared Losses”), resulting from, arising out of or relating to: (i) Customer’s or its affiliates’ intentional or illegal acts in connection with its use, including if applicable, resale or reselling, of Services; (ii) Customer’s or its affiliates’ breach of any of its representations and warranties or any of its obligations or covenants under the Agreement or Customer’s infringement of any third Party right arising from the use of any services, equipment and software not provided by RingSquared; and (iii) Customer’s and/or Customer’s customers use, resale or reselling, if applicable, of the Services.
B. By RingSquared. To the extent of the negligence, gross negligence or willfulness of RingSquared or any employee, agent or contractor under the direction or control of RingSquared, or to the extent any deliverables or materials used in or arising from provision of the Services are defective or unreasonably dangerous, RingSquared will indemnify and hold harmless Customer, its owners, parents, affiliates, subsidiaries, agents, directors and employees from and against all judgments, orders, awards, claims, damages, losses, liabilities, cost and expenses, including, but not limited to, court costs and reasonable attorney’s fees (collectively, “Customer Losses”), arising from personal injury, sickness, disease, or death and/or injury to or destruction of real or personal property to the extent such Customer Loss is directly caused by the negligence, gross negligence or intentional misconduct of RingSquared or any employee, agent or contractor under the direction or control of RingSquared, or to the extent such Customer Loss directly results from any of the deliverables or materials used in or arising from provision of the Services being defective or unreasonably dangerous.
11. Force Majeure. If RingSquared’s performance under the Agreement, or any obligation thereunder is prevented, restricted or interfered with by causes beyond its reasonable control including acts of God, fire, explosion, vandalism, cable cut, storm or other similar occurrence, any law, order, regulation, direction, action or request of the United States government, or foreign or state or local governments, or of any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more such governments, or of any civil or military authority, or by national emergency, insurrection, riot, war, strike, lockout or work stoppage or other labor difficulties, or supplier failure, shortage, breach or delay, then RingSquared shall be excused from such performance on a day-to-day basis to the extent of such restriction or interference. RingSquared shall use reasonable efforts under the circumstances to avoid or remove such causes of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes are removed or cease.
12. Authorized Use of Name. Without the other Party’s prior written consent, a Party shall not refer to itself as an authorized representative of the other Party or use the other Party’s name, logos, trademarks, service marks, or any variations thereof.
13. Notices. All notices, requests or other communications hereunder shall be in writing, addressed to the Parties as listed below. Notices mailed by registered or certified mail shall be deemed to be to have been received by the addressee. on the fifth day following the mailing or sending thereof. Notices sent by facsimile or electronic mail shall be conclusively deemed to have been received when the delivery confirmation is received. Customer shall notify RingSquared in writing if Customer’s billing address is different at the address shown below:
RingSquared Telecom LLC
14 Industrial Ave, Suite 4
Mahwah, NJ 07430
Attn: Legal
Email: legal@ringsquared.com
14. Confidentiality.
A. Confidential Information. The Parties understand and agree that the terms and conditions of the Agreement (but not the existence thereof), all documents referenced herein (including invoices to Customer for Services provided hereunder), communications between the Parties regarding the Agreement or the Services to be provided hereunder (including price quotes to Customer for any services proposed to be provided or actually provided hereunder), as well as such information relevant to any other agreement between the Parties (collectively “Confidential Information”), are confidential as between Customer and RingSquared.
B. Limited Disclosure. A Party shall not disclose Confidential Information unless allowed or required pursuant to the Agreement or subject to discovery or disclosure pursuant to applicable law(s), to any other Party other than the directors, officers, and employees of a Party or a Party’s agents including their respective attorneys, consultants, brokers, lenders, insurance carriers or bona fide prospective purchasers who have specifically agreed in writing to nondisclosure of the terms and conditions hereof. Violation by a Party or its agents of the foregoing provisions shall entitle the non- disclosing Party, at its option, to obtain injunctive relief without a showing of irreparable harm or injury and without bond.
C. Survival of Confidentiality. The provisions of this Section will be effective as of the date of the Agreement and remain in full force and effect for a period which will be the longer of: (i) one (1) year following the date of the Agreement; or (ii) one (1) year from the termination or expiration of all Services provided under the Agreement.
15. Non-Solicitation. Customer Each Party hereby covenants and agrees that it will: (a) not, either directly or indirectly, whether as an employee, agent, consultant, shareholder, owner, partner, investor, manager, member or in any capacity whatsoever, enter into or engage the other Party’s employees for a period of one (1) year following termination of this Agreement; or (b) not solicit or encourage any employee of the other Party to terminate his or her employment with the other Party, (c) not hire or otherwise retain or employ any employee of the other Party until such employee’s employment with the other Party has been terminated for more than six (6) months.
16. General.
A. Choice of Law; Forum; Legal Fees. The Agreement shall be construed under the laws of the State of Texas without regard to conflict of law principles to the contrary. Customer hereby irrevocably submits to such jurisdiction of the state and federal courts located in Collin County. Customer shall be responsible for all reasonable attorney’s fees and other costs (including but not limited to collection agency fees) in addition to any other relief to which RingSquared may be entitled.
B. Entire Agreement; Amendments. The Agreement, as defined in Section 1, consists of: (i) all the terms and conditions contained herein, and (ii) all documents incorporated herein specifically by reference. The Agreement constitutes the complete and exclusive statement of the understandings between the Parties and supersedes all prior and contemporaneous proposals and agreements (oral or written) between the Parties relating to the Services provided hereunder. No subsequent agreement between the Parties concerning the Services (including further Addendum and Order(s)) shall be effective or binding unless it is made in writing and signed by Customer and RingSquared. Notwithstanding the foregoing, a Customer’s purchase order shall not be effective or binding or in any way modify the Agreement between the Parties even if in writing and signed by Customer and RingSquared, rather it shall be solely for Customer’s recordkeeping convenience and is hereby explicitly excluded from the Agreement.
C. Successors and Assignments. The Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors or assigns, provided, however, that Customer shall not assign or transfer its rights or obligations under the Agreement without the prior written consent of RingSquared, which consent shall not be unreasonably withheld.
D. Validity. If any part of any provision of the Agreement shall be invalid or unenforceable under applicable law, rule or regulation, that part shall be ineffective to the extent of such invalidity only, without in any way affecting the remaining parts of that provision or the remaining provisions of this Agreement. In such event, Customer and RingSquared will negotiate in good faith with respect to any such invalid or unenforceable part to the extent necessary to render such part valid and enforceable.
E. No-Waiver. No term or provision of the Agreement shall be deemed waived and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented.
F. Terms. The words and phrases used herein shall have the meaning generally understood in the telecommunications and/or data services industry, as applicable. The Agreement shall be construed in accordance with its fair meaning and not for or against either Party on account of which Party drafted the Agreement. “Including” and “include” mean including without limiting the generality of any description preceding such term. Reference to any law or legal requirement means such legal requirement as amended, modified, codified, replaced or reenacted, and in effect from time to time, including rules and regulations promulgated thereunder.
G. Survival. Notwithstanding any provision of the Agreement to the contrary, the provisions of the Terms and Conditions which by their nature should apply beyond their terms shall remain in force after any termination or expiration of the Service Agreement, including, but not limited to, the provisions of the following sections: section 4 (Charges and Payment Terms); section 5 (Taxes and Regulatory Charges); section 9 (Limitation of Liability); section 10 (Indemnification); section 14 (Confidentiality); section 15 (Non-Solicitation); subsection 16(A) (Choice of Law; Legal Fees) and subsection 16(G) (Survival).
