TELCOG Communications
TERMS & CONDITIONS

Telcog Communications, Inc. Terms and Conditions

Terms and Conditions
PLEASE READ THIS TERMS AND CONDITIONS (THE
“AGREEMENT”) CAREFULLY. BY CLICKING “I AGREE,” YOU ARE AGREEING TO
THIS AGREEMENT ON BEHALF OF THE ENTITY ON WHO’S BEHALF YOU ARE
SETTING UP AN ACCOUNT (THE “CUSTOMER”). YOUR AGREEMENT TO THIS
AGREEMENT WILL BE AN AGREEMENT BETWEEN THE CUSTOMER AND
Telcog Communications, INC. (“Telcog Communications”). YOU REPRESENT AND WARRANT TO
Telcog Communications THAT YOU HAVE AUTHORITY TO BIND CUSTOMER TO THIS
AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, YOU ARE NOT AUTHORIZED TO USE Telcog Communications. THIS
AGREEMENT IS SUBJECT TO CHANGE FROM TIME TO TIME AS DETERMINED BY
Telcog Communications IN ITS SOLE DISCRETION. MODIFIED AND/OR UPDATED VERSIONS
OF THIS AGREEMENT WILL BE POSTED AT WWW.TELCOG.COM/TERMS-CONDITIONS
CUSTOMER SHOULD CHECK WWW.Telcog Communications/LEGAL/ REGULARLY FOR
MODIFIED AND/OR UPDATED VERSIONS OF THIS AGREEMENT. Telcog Communications
WILL PROVIDE CUSTOMER NOTICE OF ANY MATERIAL CHANGES TO
Telcog Communications, Telcog Communications SERVICES AND/OR THIS AGREEMENT. EXCEPT AS
OTHERWISE DETERMINED BY Telcog Communications, MODIFIED AND/OR UPDATED
VERSIONS OF THIS AGREEMENT WILL BE EFFECTIVE IMMEDIATELY UPON
POSTING; MODIFIED AND/OR UPDATED VERSIONS OF THIS AGREEMENT WILL BE
IDENTIFIED BY THE DATE, MONTH AND YEAR THEY BECOME EFFECTIVE.
DEFINITIONS:
“911 Services” means functionality that allows End Users to contact emergency services by dialing the digits 9-1-1.
“AAA” will have the meaning ascribed to such term in Section 20 below.
“Account Administrator” means Customer’s Administrator who has access to (and is authorized to) modify Customer’s billing
and other similar account information via Telcog Communications Manager. For clarity, only one (1) Administrator will serve as
Customer’s Account Administrator.
“Administrator” means a person (or persons) authorized to act on behalf of Customer, who is/are responsible for the
administration and management of the use of Telcog Communications and any applicable Telcog Communications Services by Customer and
Customer’s End Users.
“ANI” means automatic number identification.
“AUP” means Telcog Communications’s Acceptable Use Policy, which is posted at www.Telcog Communications/legal/, as modified by Telcog Communications
from time to time in Telcog Communications’s sole discretion.
“Basic 911 Service” means the ability to route an emergency call to the designated entity authorized to receive such calls serving
Customer’s Registered Address. With Basic 911 Service, the emergency operator answering an emergency call will not have
access to the caller’s telephone number or address information unless the caller provides such information verbally during the
emergency call.
“Confirmed Port Date” means the date upon which Customer’s pre-existing voice provider agrees to port a number(s) to
Telcog Communications.
“Contact Us Plus” means Telcog Communications software that, when installed by Customer, permits click-to-call (and click-to-email)
functionality from Customer’s web site when used in connection with Telcog Communications.
“CPE” means equipment located (or to be located) at Customer’s premise(s). CPE does not include Mobile Devices (as defined in
any applicable Supplement).
“Customer Equipment” means any internal wiring or extensions, required conduit, facilities, power or other similar infrastructure,
systems, equipment, software and networks used in connection with Telcog Communications and/or any applicable Telcog Communications Services.
“DID/DOD” means a telephone number assigned by Telcog Communications to Customer (or that Customer ports to Telcog Communications pursuant
to the terms and conditions of this Agreement) for use by Customer in connection with Telcog Communications and/or any applicable
Telcog Communications Services.
“Directory Listings” (or “411”) means the listing of a Customer’s telephone number in the telephone directory for an applicable
market.
“Electronic Tools” means online access, application programming interface (API), or access by any other means, to a service
ordering/management system to access or manage Customer’s use of Telcog Communications and/or any applicable Telcog Communications Services.
“Enhanced 911 Services” or “E911 Services” means the ability to route an emergency call to the designated entity authorized to
receive such calls, which in many cases is a PSAP serving Customer’s Registered Address, and to deliver the End User’s
telephone number and Registered Address information automatically to the emergency operator answering the emergency call.
“ELS” means an Enhanced Local Service DID; ELS DIDs require a Registered Address and provide two way calling capabilities,
an LCA, and additional features such as 911 Services and Directory Listings.
“End User” means an individual who Customer assigns a DID/DOD (or an extension associated with such a DID/DOD) for use
in connection with Telcog Communications and/or any applicable Telcog Communications Services pursuant to this Agreement and/or an individual
who uses Customer’s Telcog Communications Services.
“Escalation Notice” will have the meaning ascribed to such term in Section 20 below.
“Hosted” means telephony features provided by Telcog Communications and/or any applicable Telcog Communications Services which are delivered
via the Internet by servers owned, operated and/or controlled by Telcog Communications.
“ILEC” means incumbent local exchange carrier.
“Intellectual Property” means patents, pending patent applications, designs, trademarks and/or trade names (whether registered or
unregistered), copyrights and related rights, database rights, know-how, trade secrets and/or confidential information, and all
other intellectual property rights and similar or equivalent rights which currently exist or are recognized in the future, as well as
all applications, extensions and renewals in relation to any such rights.
“International” means anywhere outside of the 48 contiguous United States; for clarity, Alaska, Hawaii and Puerto Rico are
“International.”
“IP” means Internet Protocol.
“LCA” means “Local Calling Area” which is an area containing one or more Rate Centers within which a customer may place a
local call.
“LD” means long distance.
“LNP” means Local Number Portability.
“LOA” means a letter of authorization to authorize the porting of number(s) from Customer’s pre-existing voice provider to
Telcog Communications. Will be provided when requesting port from another provider.
“Local” means inbound and/or outbound calls within an LCA.
“Mobile Device” means any phone, data card, mobile broadband device, any other device, accessory or other product
Telcog Communications sells to Customer or that is active on Customer’s account with Telcog Communications.
“MRC” means monthly recurring charge.
“NADP” means the North American Dialing (or Numbering) Plan.
“NPA” means the area code of a telephone number.
“NPA/NXX” means the area code and exchange, as designated by the NADP, of a telephone number.
“NRC” means non-recurring charge.
“Officers” will have the meaning ascribed to such term in Section 20 below.
“Operator and Directory Assistance” means live or automated operator assistance for the placement of End User calls, listing
services and/or related information.
“Phone System” means any and all hardware and/or software which Customer uses to place or receive telephone calls.
“Telcog Communications” means certain communication services offered by Telcog Communications, Inc. from time to time, including, without
limitation, any applicable Telcog Communications Services made available by Telcog Communications pursuant to any applicable Supplement and/or
Service Plan and purchased and/or licensed by Customer from time to time, as managed by or through Telcog Communications Manager.
“Telcog Communications Manager” means the Electronic Tool provided by Telcog Communications and established by Customer to purchase, use and
manage Telcog Communications and/or any applicable Telcog Communications Services.
“Telcog Communications Services” means those communication services offered by Telcog Communications from time to time for use(s) in
connection with Telcog Communications, including, without limitation Telcog Communications OnDemand and Telcog Communications Softphone, which
services will be governed by an applicable supplement to this Agreement to which Customer and Telcog Communications may from time to
time agree in writing and any applicable Service Plan offered by Telcog Communications in connection with such services. For clarity,
“Telcog Communications Services” do not include Telcog Communications Free or Telcog Communications Mobile; this Agreement does not apply to the use of
Telcog Communications Free or Telcog Communications Mobile (or any Mobile Devices purchased or sold for use with Telcog Communications Mobile) by any
Customer or any Customer’s End Users.
“PSAP” means Public Safety Answering Point.
“PSTN” means the public switched telephone network.
“Rate Center” means an area within a LCA or Market that is associated with one or more specific NPA/NXX codes.
“Registered Address” means the address(es) provided to Telcog Communications by Customer: (i) in written format on Telcog Communications order
forms, if applicable, (ii) as entered into Telcog Communications Manager by Customer’s Administrator, or (iii) other written
communication by Customer to Customer’s Telcog Communications sales or post-sales support representative(s) pursuant to this
Agreement, in each case that represents the physical location from which Telcog Communications (and DID/DODs associated with
Telcog Communications and/or any applicable Telcog Communications Services) will be used by Customer and/or Customer’s End Users. Customer
has the sole responsibility for providing to Telcog Communications, and ensuring acceptance by Telcog Communications, of the Registered Address
for each physical location from which a DID/DOD associated with Telcog Communications will be used by Customer.
“RBOC” means Regional Bell Operating Company.
“Regulatory Activity” means any laws, regulations or other similar mandates (including, without limitation, any fees, surcharges
or other like charges imposed or mandated) by any federal, state or other governmental agency at any time.
“RMA” means a Return Materials Authorization.
“Service Activation Date” means, with respect to any applicable Telcog Communications Service, except as may be provided in any
applicable Supplement, the earlier of (i) the date Telcog Communications deems such Telcog Communications Service to be activated with respect to
Customer, or (ii) the date Customer actually utilizes such Telcog Communications Service.
“Service Address” means the address provided to Telcog Communications by Customer: (i) in written format on Telcog Communications order forms,
if applicable, (ii) as entered into Telcog Communications Manager by Customer’s Administrator, or (iii) other written communication by
Customer to Customer’s Telcog Communications sales or post-sales support representative(s) pursuant to this Agreement, in each case that
represents the physical location of Customer.
“Service Plan” means any applicable plan pursuant to which Telcog Communications provides Telcog Communications and/or any applicable
Telcog Communications Services to Customer, including Customer’s monthly service allotments for minutes, messages and/or data, rates
and other terms.
“Service Term” will mean the period during which any applicable Supplement to this Agreement remains in effect pursuant to
the terms and conditions of any Telcog Communications Service. For clarity, the “Service Term” will expire and/or terminate immediately
upon the date when all
Supplement(s) to this Agreement entered into pursuant to this Agreement from time to time will have expired and/or terminated
by their terms.
“SIP” is the signaling protocol used between VoIP networks to establish, control and terminate voice calls.
“Toll Free Number” means a telephone number that supports NADP for inbound toll free service (including, but not limited to,
NPAs 800, 866, 877) assigned by Telcog Communications to Customer (or that Customer ports to Telcog Communications pursuant to the terms and
conditions of this Agreement) for use by Customer in connection with Telcog Communications.
“U.S. Domestic” means the 48 contiguous United States; for clarity, Alaska, Hawaii and Puerto Rico are “International.”
“Usage” means call traffic measured in units, usually in minutes or seconds.
“Usage Threshold” means any restrictions or limitations included in this Agreement, any applicable Supplement or in any
applicable Service Plan.
“VoIP” means Voice over IP.
1. Telcog Communications Overview. So long as Customer is not in default with respect to its obligations pursuant to this Agreement,
Telcog Communications will provide Customer with Telcog Communications (and any applicable Telcog Communications Services) pursuant to the terms of any
applicable Service Plan offered by Telcog Communications from time to time and purchased and/or licensed by Customer.
Telcog Communications IS A BUSINESS SERVICE PROVIDED FOR USE WITH A PHONE SYSTEM AND IS DESIGNED AND
OFFERED EXCLUSIVELY FOR SMALL TO MEDIUM SIZED BUSINESS USE. CUSTOMER ACKNOWLEDGES AND
AGREES THAT Telcog Communications AND ALL Telcog Communications SERVICES SHALL BE USED STRICTLY AND
EXCLUSIVELY FOR COMMERCIAL USE ONLY BY A BUSINESS ENTITY THAT REQUIRES MULTIPLE LINES
AND/OR EXTENSIONS. NEITHER Telcog Communications NOR ANY Telcog Communications SERVICE IS BEING OFFERED OR
INTENDED FOR ANY NONBUSINESS OR NON-COMMERCIAL USE, NOR FOR USE BY INDIVIDUALS OR FOR
RESIDENTIAL USE. AS A PRODUCT FOR BUSINESS AND COMMERCIAL USE ONLY, Telcog Communications AND
Telcog Communications SERVICES DO NOT INCLUDE CERTAIN FUNCTIONS THAT USERS MAY EXPECT IN A
RESIDENTIAL SERVICE.
Telcog Communications MAY BE USED ONLY FOR LAWFUL, PROPER AND APPROPRIATE PURPOSES AND MAY NOT BE
USED IN ANY WAY THAT IS ILLEGAL, IMPROPER OR INAPPROPRIATE, OR OTHERWISE FAILS TO CONFORM TO
Telcog Communications’S ACCEPTABLE USE POLICY POSTED AT WWW.Telcog Communications/LEGAL/, WHICH IS
INCORPORATED BY REFERENCE HEREIN.
INAPPROPRIATE USES PROHIBITED BY Telcog Communications’S ACCEPTABLE USE POLICY (AS REFERENCED IN
SECTION 16 BELOW) INCLUDE, BUT ARE NOT LIMITED TO: RESALE OR TRANSFER OF Telcog Communications; AUTODIALING;
CONTINUOUS CONNECTIVITY; FAX ROADCAST/BLASTING; TELEMARKETING; PREDICTIVE
DIALING; OR ANY OTHER USE OR ACTIVITY THAT IS INCONSISTENT WITH NORMAL SMALL TO MEDIUM
SIZED BUSINESS USAGE. Telcog Communications RESERVES THE RIGHT TO MEASURE FOR APPROPRIATE USE AND AT
ITS SOLE DISCRETION MAY DETERMINE THAT Telcog Communications HAS BEEN SUBJECT TO INAPPROPRIATE USE. IN
THE EVENT INAPPROPRIATE USE IS DETERMINED, Telcog Communications MAY REQUEST CUSTOMER CHANGE OR
MODIFY THE USE OF Telcog Communications, ANY APPLICABLE Telcog Communications SERVICE AND/OR ANY APPLICABLE
SERVICE PLAN. ADDITIONALLY, Telcog Communications RESERVES THE RIGHT TO IMMEDIATELY TERMINATE
SERVICE AND, IN ADDITION TO ANY AND ALL OTHER APPLICABLE CHARGES UNDER THIS AGREEMENT,
CHARGE A MINIMUM INAPPROPRIATE USE FEE OF $500 AND/OR CHARGE $0.05 PER MINUTE FOR ALL CALLS
MADE DURING SUCH PERIODS OF PROHIBITED USE (PLUS APPLICABLE INTERNATIONAL CHARGES),
WHICHEVER IS HIGHER, AS WELL AS, ALL APPLICABLE AMOUNTS DUE PURSUANT TO THIS AGREEMENT.
2. Emergency Services. CUSTOMER ACKNOWLEDGES AND AGREES THAT 911 SERVICE FOR Telcog Communications
SERVICES ARE DIFFERENT THAN FOR TRADITIONAL WIRELINE SERVICE. CUSTOMER WILL CAREFULLY
REVIEW INFORMATION REGARDING 911 SERVICE PROVIDED IN ANY SUPPLEMENT TO THIS AGREEMENT
ENTERED INTO FROM TIME TO TIME.
CUSTOMER MUST REVIEW AND PROVIDE AFFIRMATIVE ACKNOWLEDGMENT OF THE CUSTOMER NOTICE OF
911 AND E911 SERVICE LIMITATIONS, POSTED AT WWW.Telcog Communications/LEGAL/, PRIOR TO SERVICE
ACTIVATION.
CUSTOMER WILL INFORM ALL OF CUSTOMER’S END USERS (OR OTHER THIRD PERSONS WHO MAY USE
Telcog Communications SERVICES) THAT 911 SERVICE FOR Telcog Communications SERVICES IS DIFFERENT THAN FOR
TRADITIONAL WIRELINE SERVICE. CUSTOMER WILL INFORM ALL OF CUSTOMER’S END USERS (OR OTHER
THIRD PERSONS WHO MAY USE Telcog Communications SERVICES) THAT THEY MAY ACCESS EMERGENCY SERVICES
VIA ANY ADDITIONAL ARRANGEMENTS THAT CUSTOMER HAS MADE AVAILABLE TO ITS END USERS.
CUSTOMER WILL DISTRIBUTE STICKERS CONCERNING 911 LIMITATIONS TO CUSTOMER’S END USERS AND
INSTRUCT END USERS TO ATTACH SUCH LABELS TO ALL DEVICES USED TO MAKE USE OF Telcog Communications
SERVICES.
CUSTOMER ACKNOWLEDGES AND AGREES THAT NEITHER Telcog Communications, ITS UNDERLYING CARRIER, NOR
ANY OTHER THIRD PARTIES INVOLVED IN THE ROUTING, HANDLING, DELIVERY, OR ANSWERING OF
EMERGENCY SERVICES OR IN RESPONDING TO EMERGENCY CALLS, NOR THEIR OFFICERS OR EMPLOYEES,
MAY BE HELD LIABLE FOR ANY ACTUAL OR ALLEGED CLAIM, DAMAGE, LOSS, FINE, PENALTY OR COST
(INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES) AND CUSTOMER HEREBY WAIVES ANY AND ALL
SUCH CLAIMS OR CAUSES OF ACTION, ARISING FROM OR RELATING TO THE PROVISION OF ALL TYPES OF
EMERGENCY SERVICES TO CUSTOMER. CUSTOMER FURTHER AGREES AND ACKNOWLEDGES THAT IT IS
INDEMNIFYING AND HOLDING HARMLESS Telcog Communications FROM ANY ACTUAL OR ALLEGED CLAIM OR
ACTION FOR ANY CALLER PLACING SUCH A CALL WITHOUT REGARD TO WHETHER THE CALLER IS AN
EMPLOYEE OF THE CUSTOMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY INJURY ARISING OUT
OF MISROUTED 911 CALLS, REGARDLESS OF WHETHER THE CALL WAS ROUTED BY A PUBLIC SAFETY
ANSWERING POINT OR AN OFFICIAL EMERGENCY OPERATOR, IS NEITHER THE FAULT NOR LIABILITY OF
Telcog Communications AND CUSTOMER HOLDS Telcog Communications HARMLESS FROM ANY DAMAGES OR LIABILITIES. THE
LIMITATIONS APPLY TO ALL CLAIMS REGARDLESS OF WHETHER THEY ARE BASED ON BREACH OF
CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY OTHER THEORIES OF LIABILITY.
3. Service Availability. Subject to the terms and conditions of this Agreement, Telcog Communications and Telcog Communications Manager will be
available during the Service Term, except in the case of maintenance to the network operated by Telcog Communications and/or any other
underlying carrier’s network. Telcog Communications will use commercially reasonable efforts to provide prior notification to Customer via
electronic mail (“email”) (or via Telcog Communications Manager) regarding any scheduled maintenance to Telcog Communications, Telcog Communications
Manager, and/or any applicable Telcog Communications Services. Telcog Communications may interrupt its provision of Telcog Communications, Telcog Communications
Manager and/or any applicable Telcog Communications Services, for unscheduled emergency maintenance without notice to Customer from
time to time. Telcog Communications will use its commercially reasonable efforts to provide Telcog Communications, Telcog Communications Manager, and any
applicable Telcog Communications Services, with minimum disruptions; however, Telcog Communications cannot guarantee that Telcog Communications,
Telcog Communications Manager and/or any applicable Telcog Communications Services will always function without disruptions, delay or other
imperfections.
4. Telcog Communications Manager; Related Account Management.
(a) Telcog Communications Manager enables Customer to purchase and use Telcog Communications (and any applicable Telcog Communications
Services). Customer’s Administrator(s) will administer and manage the use of Telcog Communications (and any applicable Telcog Communications
Services) by Customer and Customer’s End Users. Customer’s End Users also may be able to manage the use of applicable
Telcog Communications Services with respect to such End User. Customer will ensure that each of Customer’s Administrator(s) and End
User(s) has read and agrees to comply with this Agreement and any applicable Supplement.
(b) Customer’s Administrator(s) will establish a password to restrict complete access to Telcog Communications Manager to
Customer’s Administrator(s); only Customer’s Account Administrator will have access to and be authorized to modify
Customer’s billing and other similar account information. Customer’s End User(s) also will establish password(s) to restrict
access to the use of applicable Telcog Communications Services by such End User(s) to Customer’s Administrator(s) and such End User(s).
Customer will (and will ensure that Customer’s Administrator(s) and End User(s)) take all steps necessary to ensure the security
of any applicable password. If Customer (or Customer’s Administrator(s) or End User(s)) suspects that any password has been
shared or otherwise become known to anyone other than Customer’s Administrator(s) or applicable End User(s), Customer (or
Customer’s Administrator(s) or End User(s)) will immediately change any such password. Customer, Customer’s
administrator(s) and any End Users will not respond to any unsolicited requests for credit card details,
asswords or other data. Customer will be solely responsible for any authorized or unauthorized access to or use of Telcog Communications
(and any applicable Telcog Communications Services) and/or Telcog Communications Manager, including, without limitation, any acts or omissions of
Customer’s Administrator(s) or Customer’s End Users.
(c) Customer will purchase a number of line(s) for Customer’s End Users as provided in any applicable Service Plan.
Customer’s Administrator(s) may allocate to each of Customer’s End Users a telephone number assigned by Telcog Communications to
Customer (or that Customer ports to Telcog Communications pursuant to the terms and conditions of this Agreement) for use by such End
User. Customer is solely responsible for all Usage of Telcog Communications (and any applicable Telcog Communications Services) by or attributable
to any End User, whether or not authorized by Customer.
5. Service Term. The Service Term will commence on the date that Customer enters into this Agreement with Telcog Communications and
will continue so long as any applicable Supplement to this Agreement remains in effect pursuant to the terms and conditions of
any applicable Telcog Communications Service. The Service Term will expire and/or terminate immediately upon the date when all
Supplement(s) to this Agreement entered into pursuant to this Agreement from time to time will have expired and/or terminated
by their terms.
6. No Warranties.
(a) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN A WRITTEN AGREEMENT BETWEEN
CUSTOMER AND Telcog Communications, Telcog Communications, Telcog Communications MANAGER, ANY APPLICABLE Telcog Communications
SERVICE, CONTACT US PLUS AND ANY CPE, EQUIPMENT, MOBILE DEVICES AND/OR RELATED SERVICES
EACH IS PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND EITHER
EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EACH OF
Telcog Communications, ITS AFFILIATES, SUPPLIERS AND, IF APPLICABLE, RESELLERS DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, WHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING
THE FOREGOING, Telcog Communications, ITS AFFILIATES, SUPPLIERS AND, IF APPLICABLE, RESELLERS DO NOT
WARRANT THAT Telcog Communications (OR ANY FUNCTIONS OF Telcog Communications OR ANY Telcog Communications SERVICES),
CONTACT US PLUS, ANY CPE, EQUIPMENT, MOBILE DEVICES AND/OR RELATED SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT Telcog Communications,
Telcog Communications MANAGER, CONTACT US PLUS OR ANY Telcog Communications SERVICES (OR ANY SERVER THAT
MAKES Telcog Communications, ANY Telcog Communications SERVICES, Telcog Communications MANAGER OR CONTACT US PLUS
AVAILABLE) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Telcog Communications DOES NOT
WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR RESULTS OF Telcog Communications,
Telcog Communications MANAGER, ANY Telcog Communications SERVICES OR CONTACT US PLUS IN TERMS OF ITS
CORRECTNESS, ACCURACY, RELIABILITY, UNAUTHORIZED ACCESS BY THIRD PARTIES OR OTHERWISE.
CUSTOMER (AND NOT Telcog Communications) ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR
OR CORRECTION. CUSTOMER ACKNOWLEDGES THAT ANY DATA OR INFORMATION DOWNLOADED OR
OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF Telcog Communications, ANY Telcog Communications SERVICES,
Telcog Communications MANAGER AND/OR CONTACT US PLUS IS AT CUSTOMER’S SOLE RISK AND DISCRETION AND
Telcog Communications WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER OR CUSTOMER’S
PROPERTY. CUSTOMER HEREBY EXPRESSLY ASSUMES THE RISK OF ITS OR ITS END USER’S USE OF ANY
INFORMATION TRANSMITTED VIA Telcog Communications OR ANY Telcog Communications SERVICES. NO ADVICE OR
INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM Telcog Communications, IT’S
EMPLOYEES OR THROUGH OR FROM Telcog Communications, ANY Telcog Communications SERVICE AND/OR Telcog Communications
MANAGER WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. APPLICABLE LAW
MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE FOREGOING EXCLUSION MAY NOT
APPLY.
(b) Telcog Communications WILL HAVE NO OBLIGATION TO DEFEND OR INDEMNIFY CUSTOMER FROM OR
AGAINST ANY THIRD PARTY CLAIMS ALLEGING THAT CUSTOMER’S USE OF Telcog Communications, ANY
Telcog Communications SERVICES, Telcog Communications MANAGER OR CONTACT US PLUS OR THE EXERCISE OF ANY RIGHTS
GRANTED HEREIN INFRINGES ON ANY INTELLECTUAL PROPERTY OF ANY THIRD PARTY. IF A CLAIM IS
MADE, OR IN Telcog Communications’S REASONABLE OPINION IS LIKELY TO BE MADE, AGAINST Telcog Communications,
CUSTOMER OR ANY THIRD PARTY ALLEGING THAT Telcog Communications, ANY APPLICABLE Telcog Communications
SERVICES, Telcog Communications MANAGER, CONTACT US PLUS OR ANY USE THEREOF INFRINGES ANY
INTELLECTUAL PROPERTY OF ANY THIRD PARTY, Telcog Communications MAY, IN Telcog Communications’S SOLE DISCRETION,
TERMINATE THIS AGREEMENT AND ALL RIGHTS AND OBLIGATIONS PURSUANT TO THIS AGREEMENT.
(c) EXCEPT AS PROVIDED IN ANY WRITTEN AGREEMENT WITH Telcog Communications, Telcog Communications
HAS NO OBLIGATION TO PROVIDE ANY SUPPORT TO CUSTOMER OR ANY END USER WITH RESPECT TO
Telcog Communications,
ANY Telcog Communications SERVICE, Telcog Communications MANAGER AND/OR CONTACT US PLUS. IF CUSTOMER HAS
ENTERED INTO A WRITTEN AGREEMENT WITH Telcog Communications FOR ANY APPLICABLE SUPPORT, Telcog Communications
DOES NOT SUPPORT Telcog Communications BEYOND THE Telcog Communications POINT OF DEMARCATION AS DESCRIBED AT
HTTP://WWW.Telcog Communications.
7. CPE.
(a) If Customer leases CPE from Telcog Communications: Customer will allow Telcog Communications reasonable access to the CPE as
required to provide the CPE and/or Telcog Communications and any applicable Telcog Communications Services. Customer acknowledges and agrees
that any such leased CPE may be new or recertified. CPE leased by Customer from Telcog Communications may be covered under a limited
warranty provided by any applicable manufacturer or provider, which Telcog Communications will extend to Customer without charge to
the extent Telcog Communications can do so pursuant to Telcog Communications’s agreements with any applicable manufacturer or provider;
however, Telcog Communications provides no warranty with respect to any such leased CPE (and/or CPE provider service). Customer will
reimburse Telcog Communications, on a time and materials basis, for Telcog Communications’s entire cost to repair and/or replace any such CPE in
the event of (a) misuse, (b) failure to exercise reasonable care, (c) alteration of the original configuration of such CPE by
Telcog Communications, (d) damage, (e) theft, or (f) disaster. If such CPE requires maintenance not caused by one of the events set out in
the preceding sentence, Telcog Communications (or its agents) will either arrange to repair such CPE at Customer’s premises or ship an
equivalent pre-configured replacement to Customer. If Telcog Communications ships replacement CPE to Customer at any time, Customer
will return, at Customer’s cost and expense, the replaced CPE to Telcog Communications not later than ten (10) days immediately after
Customer’s receipt of the replacement CPE or pay for such replaced CPE. Customer will not receive any compensation or credit
for any downtime or outages associated with the replacement or repair of any such CPE. Upon expiration or termination of this
Agreement for any reason, Customer will return, at Customer’s cost and expense, to Telcog Communications any leased CPE not later than
ten (10) days immediately after the expiration or termination of this Agreement. Customer is responsible for all risk of loss and
damage to CPE being shipped to Telcog Communications pursuant to this Section 7(a). If Customer fails to timely return such leased CPE
in good working condition to Telcog Communications, Telcog Communications will charge Customer for the cost of such leased CPE. If Customer
terminates any applicable lease of any CPE prior to the expiration or termination of any applicable term, in addition to any
amounts otherwise due and payable pursuant to the terms and conditions of such lease, Telcog Communications may charge Customer a
restocking fee equal to twenty percent (20%) of the original purchase price of such leased CPE.
(b) If Customer purchases CPE from Telcog Communications: CPE purchased by Customer from Telcog Communications may be covered
under a limited warranty provided by any applicable manufacturer or provider, which Telcog Communications will extend to Customer
without charge to the extent Telcog Communications can do so pursuant to our agreements with any applicable manufacturer or provider;
however, Telcog Communications provides no warranty with respect to any such purchased CPE (and/or CPE provider service). All sales of
CPE purchased by Customer from Telcog Communications are final; provided, however, if Customer receives purchased CPE that is
damaged or nonfunctional upon arrival, (i) within ten (10) days of receipt of such damaged or nonfunctional CPE, Customer must
notify Telcog Communications via email to Customer Care at info@Telcog Communications to request an RMA; (ii) Telcog Communications only will accept
returns of any such damaged or nonfunctional products within thirty (30) days of the date of the shipment to Customer by
Telcog Communications; (iii) any such damaged or nonfunctional CPE timely returned to Telcog Communications by Customer must be fully
complete, including all original manufacturer boxes with the UPC code and packing materials, all manuals, blank warranty cards,
accessories and any other documentation included with the original shipment to Customer; (iv) Telcog Communications will not accept CPE
returned in used or altered condition; (v) Customer is solely responsible for all costs and expenses connected to the shipment to
Telcog Communications of any such damaged or nonfunctional products shipped to Telcog Communications pursuant to this Section 7(b); (vi)
Customer is responsible for all risk of loss and damage to products being shipped to Telcog Communications pursuant to this Section 7(b);
and (vii) if Telcog Communications determines that the CPE operates within manufacturer specifications upon return pursuant to any
applicable RMA, the affected CPE will be returned to Customer at Customer’s sole cost and expense and the sale of such CPE
will remain final.
8. Billing and Payment. Telcog Communications will bill Customer, and Customer will pay, for Telcog Communications and any applicable
Telcog Communications Services at the rates stated in any applicable Service Plan, as well as any other charges or amounts as described in
this Agreement or any applicable Supplement. Bills and/or charges will include all applicable federal, state, and local taxes; all
such taxes, and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees, surcharges and
miscellaneous fees, including but not limited to regulatory fees such as Universal Service Fund (“Taxes” and “Fees” or together
“Taxes and Fees”), whether or not charged to or against Telcog Communications , will be payable by Customer. However, if Customer
provides proof of its exempt status for a specific Tax or Fee, Telcog Communications will not charge the applicable Tax or Fee due to such
exemption. If applicable, Customer will supply Telcog Communications a valid and properly executed tax exemption certificate(s) in the
form of an email (with supporting attachments) sent to info@Telcog Communications with “Notice of Tax Exempt Status” in the subject
line of the email. In such cases Customer remains responsible for, and agrees to pay, any and all remaining non-exempt Taxes
and Fees; tax exemption status validation is solely the responsibility of Customer and Telcog Communications will not be obligated to
consider any retroactive tax exemption. Telcog Communications will commence billing for all MRC and any other charges pursuant to this
Agreement or any applicable Supplement on any applicable Service Activation Date. Except as expressly provided in any
applicable Supplement, the MRC applicable to any applicable Telcog Communications Service for the calendar month immediately
following the applicable Service Activation Date (and any then applicable NRC) will be billed upon the Service Activation Date.
If applicable, the MRC applicable to any applicable Telcog Communications Service for the first partial calendar month immediately
following the applicable Service Activation Date will be pro-rated and billed accordingly. Thereafter, the applicable MRC for
each calendar month (and any applicable NRC) will be billed on or about the first day of such calendar month. Any applicable
Usage charges are billed after the actual calls and Usage has occurred in accordance with the terms and conditions of this
Agreement, any applicable Supplement and any applicable Service Plan. Time is of the essence with respect to any amounts due
or payable pursuant to this Agreement. After fifteen (15) days of non-payment, all fees will accrue interest at a rate of one and
one-half percent (1.5%) per month or any part thereof, or the highest rate allowed by applicable law, and Customer will pay all
collection costs incurred by Telcog Communications (including, without limitation, reasonable attorney’s fees). If, at any time after any
applicable due date for any applicable bill, Customer has failed to make satisfactory payment as determined by Telcog Communications,
Telcog Communications may give Customer written notification (by email or otherwise), that Customer has committed a material breach of
this Agreement and/or any applicable Supplement. Except upon the occurrence of a serious material breach, as determined by
Telcog Communications in its sole discretion, Telcog Communications will provide the “Notification of Material Breach” at least five (5) business
days prior to Telcog Communications’s suspension or termination of Telcog Communications and/or any applicable Telcog Communications Service for such
Customer. Customer must pay all outstanding amounts payable to Telcog Communications pursuant to this Agreement within such five (5)
business day period to avoid suspension or termination of Telcog Communications and/or any applicable Telcog Communications Service. If
Telcog Communications terminates Telcog Communications or any applicable Telcog Communications Service for such Customer due to non-payment pursuant
to this Agreement, then, in addition to any other amounts then due and payable by Customer to Telcog Communications, Customer also will
be obligated to pay to Telcog Communications the fees described in this Agreement or pursuant to any applicable Supplement and/or
Service Plan. Upon the occurrence of a serious material breach, as determined by Telcog Communications in its sole discretion,
Telcog Communications may immediately suspend or terminate Telcog Communications and/or any applicable Telcog Communications Service for such
Customer. Telcog Communications may, at any time and in its sole discretion: (i) require a security deposit to continue provisioning
Telcog Communications or any applicable Telcog Communications Service to Customer pursuant to this Agreement, if Customer’s level of approved
credit, as determined by Telcog Communications in its sole discretion, is deemed insufficient, as determined by Telcog Communications in its sole
discretion; (ii) change payment terms, billing cycle, and/or any applicable due date(s); (iii) demand immediate payment by wire
or other means and discontinue Telcog Communications or any applicable Telcog Communications Service for Customer without notice to Customer if
Telcog Communications determines Customer’s Usage exceeds Customer’s level of approved credit, as determined by Telcog Communications in its
sole discretion; and/or (iv) immediately block Customer’s access to or use of Telcog Communications or any applicable Telcog Communications
Service if a Customer’s pre-paid balance is depleted or is at a level that cannot cover Customer’s estimated traffic during the time
required for Customer to replenish their prepaid balance, or Customer otherwise refuses to make any reasonably requested
payments. Telcog Communications retains the right to bill, including, without limitation, amend or correct any bill previously issued, for
any applicable Telcog Communications Service provided pursuant to this Agreement, for a period of up to twelve (12) months, commencing
from the date of the provision of any applicable Telcog Communications Service(s) to Customer. Telcog Communications will retain such billing
rights for such twelve (12) month period notwithstanding any prior billing to Customer for the same period(s) and regardless of
any otherwise conflicting billing conditions in this Agreement. For the duration of such twelve (12) month period, Telcog Communications
will not be deemed to have waived any rights with regard to billing for any applicable Telcog Communications Service provided pursuant to
this Agreement during such period, nor will any legal or equitable doctrines apply, including estoppel or laches. Unpaid bills
and/or charges may be sent to third party collection agencies.
Additional terms that apply if Customer has authorized payment by credit card or debit card pursuant to any applicable
Supplement or Service Plan: Customer agrees that all payments by Customer will be made to Telcog Communications via credit or debit
card. Telcog Communications may change the types of cards accepted by Telcog Communications at any time in its sole discretion. Customer is solely
responsible for the use of the account from which payment is made. If Customer provides an account number that Telcog Communications
accepts for payment, Customer authorizes Telcog Communications to charge all amounts Customer owes, then or later, to that account and
to demand immediate payment from the card issuer. Customer also agrees to pay, pursuant to the terms of Customer’s agreement
with Customer’s card issuer, the amounts charged to such account. Each time Customer or Customer’s End Users uses
Telcog Communications and/or any applicable Telcog Communications Service, Customer reaffirms that Telcog Communications is authorized to charge
Customer’s credit or debit card. Customer authorizes Telcog Communications to charge purchases made online to the account supplied by
Customer to Telcog Communications. Customer is solely responsible to notify Telcog Communications promptly if the card information that Customer
previously provided to Telcog Communications is no longer accurate. Customer acknowledges that, if Customer’s card is rejected, or
payments are disputed, Telcog Communications may terminate this Agreement and/or any applicable Supplement, Telcog Communications Services
and/or Service Plan until payments are resumed and received or disputes have been finally resolved. Customer acknowledges that
Telcog Communications may not be able to distinguish between credit and debit cards. While Telcog Communications may send Customer messages
about Customer’s billing, Telcog Communications is not obligated to do so and may change or cease its messages at any time.
Additional terms that apply if Customer has authorized payment by automatic clearing house pursuant to any applicable
Supplement or Service Plan: Customer agrees that all payments by Customer will be made to Telcog Communications via automatic
clearing house. Customer is solely responsible for the use of the account from which payment is made. If Customer provides an
account number that Telcog Communications accepts for payment, Customer authorizes Telcog Communications to charge all amounts Customer
owes, then or later, to that account and to demand immediate payment from Customer’s bank. Customer also agrees to pay,
pursuant to the terms of Customer’s agreement with Customer’s bank, the amounts charged to such account. Each time Customer
or Customer’s End Users uses Telcog Communications and/or any applicable Telcog Communications Service, Customer reaffirms that Telcog Communications
is authorized to charge Customer’s account via automatic clearing house. Customer authorizes Telcog Communications to charge purchases
made online to the account supplied by Customer to Telcog Communications. Customer is solely responsible to notify Telcog Communications
promptly if the account information that Customer previously provided to Telcog Communications is no longer accurate. Customer
acknowledges that, if Customer’s automatic clearing house payment does not clear, or payments are disputed, Telcog Communications may
terminate this Agreement and/or any applicable Supplement, Telcog Communications Services and/or Service Plan until payments are
resumed and received or disputes have been finally resolved. While Telcog Communications may send Customer messages about
Customer’s billing, Telcog Communications is not obligated to do so and may change or cease its messages at any time.
9. Billing Disputes. If Customer disputes any amounts charged to Customer by Telcog Communications pursuant to this Agreement,
Customer will pay in full all charges billed by any applicable due date and thereafter submit written notification, within thirty
(30) calendar days of the date of the disputed charges, in the form of an email sent to info@Telcog Communications with “Notice of Billing
Dispute” in the subject line of the email. Such email notification must include Customer’s complete contact information, the
specific dollar amount in dispute, detailed supporting calculations and reasons for the dispute, and any supporting documentation,
if available, in the body of or attached to, the email. Telcog Communications will respond to Customer, in writing, within thirty (30)
calendar days immediately after receipt of from Customer of any such notice of billing dispute. Any dispute resolved in favor of
Customer will be credited as appropriate to the next bill issuable by Telcog Communications pursuant to this Agreement, including any
applicable Supplement. If Telcog Communications determines that any disputed amounts are correct as billed pursuant to this Agreement,
including any applicable Supplement, Telcog Communications will notify Customer in writing that the charges have been deemed valid and
legitimate, and the dispute will be considered resolved by both parties; if, for any reason, any amount(s) remain due from
Customer related to such dispute, then all such amounts will be due and payable immediately. Telcog Communications reserves the right to
deny or delay any and all billing disputes and/or credits if Customer’s account is in arrears or otherwise not in good standing.
10. Resumption of Service. If Customer requests the restoration of any applicable Telcog Communications Service to such Customer after a
suspension or termination, Telcog Communications has the sole and absolute discretion to restore any applicable Telcog Communications Service to
such Customer and may condition restoration upon satisfaction of such conditions as Telcog Communications determines necessary,
including, without limitation, Customer’s execution or delivery of a new agreement, payment of all past due amounts in full,
completion of Telcog Communications’s credit approval process, and/or the making of advance payments. Additional NRC also may apply.
11. Material Breach; Termination for Material Breach; Effect of Termination for Material Breach. Telcog Communications or
Customer may terminate this Agreement and, in the case of Telcog Communications, any or all Telcog Communications Services and/or Contact Us
Plus provided hereunder, upon the occurrence of a material breach that is not cured within thirty (30) days following the delivery
of written notice specifying said breach; provided, however, Telcog Communications may terminate this Agreement and/or any or all
Telcog Communications Services and/or Contact Us Plus provided hereunder for such Customer immediately upon a serious material
breaches, as determined by Telcog Communications in its sole discretion. For clarity, a breach, material breach and/or serious material
breach with respect to any Telcog Communications Service and/or Contact Us Plus will constitute a breach, material breach and/or serious
material breach, as the case may be, with respect to all Telcog Communications Services, as determined by Telcog Communications in its sole
discretion. Such notice from Customer must be in the form of an email sent to info@Telcog Communications, with “Notice of Material
Breach” in the subject line of the email and Customer’s complete contact information, detailed explanation, and any supporting
documentation, if available, in the body of or attached to, the email. Such notice from Telcog Communications will be in the form of an
email to Customer. In the event of an uncured material breach by Telcog Communications, this Agreement and Customer’s access to and
use of any or all Telcog Communications Services and Contact Us Plus provided hereunder will terminate without further liability to
Customer; provided, however, Customer will remain responsible for: (a) any amounts due pursuant to this Agreement incurred
prior to such termination, and (b) any NRC previously waived by Telcog Communications. In the event of an uncured material breach by
Customer, including, without limitation, any asserted termination of this Agreement prior to the expiration of any applicable
Service, the following fees will apply, which Customer acknowledges and agrees are customary and reasonable and do not
constitute a penalty or premium: (a) any amounts due pursuant to this Agreement incurred prior to such termination, (b) any
amounts due pursuant to any applicable Supplement and/or Service Plan with respect to any applicable Telcog Communications Service,
including, without limitation, the total of any applicable monthly minimum commitments for any Telcog Communications Services
provided hereunder (including, without limitation, any Usage) for the remainder of the applicable Service Term and any other
fees included in any applicable Supplement and/or Service Plan, and (c) any NRC previously waived by Telcog Communications. If
Customer authorizes another carrier to transfer a number away from Telcog Communications, such authorization will be considered a
request by Customer to terminate all Telcog Communications Services associated with that number.
12. Termination by Telcog Communications. In addition to any other right that Telcog Communications may have to terminate or suspend this
Agreement, if Telcog Communications determines, in its sole discretion, that Customer’s ongoing use of Telcog Communications, any or all
Telcog Communications Services, and/or the specific method or technology utilized by Customer places the network operated by
Telcog Communications, other customers, partners or the overall business(es) of each in jeopardy, Telcog Communications reserves the right to
terminate this Agreement (and/or any applicable Supplement) and Customer’s access to Telcog Communications, any or all Telcog Communications
Services and/or Contact Us Plus immediately and without notification.
13. License; Intellectual Property.
(a) Subject to Customer’s compliance with this Agreement, Telcog Communications grants Customer a non-exclusive,
nontransferable license to use Telcog Communications, Telcog Communications Manager and/or Contact Us Plus solely in connection with
Customer’s use of
Telcog Communications during the Service Term. Telcog Communications, Telcog Communications Manager and/or Contact Us Plus may be incorporated into,
and may incorporate itself, software and other technology owned or controlled by third parties. Any such third party software or
technology incorporated in Telcog Communications, Telcog Communications Manager and/or Contact Us Plus falls under the scope of this Agreement.
Any and all other third party software will be subject to Customer’s acceptance of a license agreement with such third party.
Customer will use Telcog Communications, any Telcog Communications Service, Telcog Communications Manager and/or Contact Us Plus solely for lawful
purposes in connection with Customer’s use of Telcog Communications during the Service Term. Customer (and Customer’s End Users)
will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or
underlying ideas or algorithms of Telcog Communications, any Telcog Communications Service, Telcog Communications Manager and/or Contact Us Plus; (ii)
modify, translate or create derivative works based on Telcog Communications, any Telcog Communications Service, Telcog Communications Manager and/or
Contact Us Plus; (iii) rent, lease, distribute, sell, resell, assign, display, host, outsource, disclose or otherwise commercially
exploit or otherwise transfer rights to Telcog Communications, any Telcog Communications Service, Telcog Communications Manager and/or Contact Us Plus or
make Telcog Communications, any Telcog Communications Service, Telcog Communications Manager and/or Contact Us Plus available to any third party; (iv)
use Telcog Communications, any Telcog Communications Service, Telcog Communications Manager and/or Contact Us Plus for timesharing or service bureau
purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices or labels on Telcog Communications, any
Telcog Communications Service, Telcog Communications Manager and/or Contact Us Plus; or (vi) copy, reproduce, post or transmit Telcog Communications,
any Telcog Communications Service, Telcog Communications Manager and/or Contact Us Plus in any form or by any means, including, without
limitation, electronic, mechanical, photocopying, recording or other means.
(b) Telcog Communications, Telcog Communications Services, Telcog Communications Manager and/or Contact Us Plus each is the Intellectual
Property of Telcog Communications. Customer (and Customer’s End Users) will not delete or in any manner alter the copyright, trademark,
and other proprietary rights notices or markings appearing on or in connection with Telcog Communications, any Telcog Communications Service,
Telcog Communications Manager and/or Contact Us Plus. Any third party Intellectual Property included in Telcog Communications, any Telcog Communications
Service, Telcog Communications Manager and/or Contact Us Plus is the property of the respective owner of such Intellectual Property and
may be protected by applicable law. Nothing in this Agreement gives Customer (or Customer’s End Users) any right or license to
any trademarks and/or trade names (whether registered or unregistered), signs, logos, icons, slogans, banners, screen shots, trade
dress, links or other brand features of Telcog Communications, including, without limitation “Telcog Communications,” without the prior written
consent of Telcog Communications, which consent may be withheld in the sole discretion of Telcog Communications for any reason. If Customer (or
any End User) from time to time provides suggestions, comments and/or other feedback to Telcog Communications with respect to
Telcog Communications, any Telcog Communications Service, Telcog Communications Manager and/or Contact Us Plus, Telcog Communications may, in connection with
any of its products or services, freely use, copy, disclose, license, distribute and/or exploit any such suggestions, comments
and/or other feedback in any manner and without any obligation or restriction based on intellectual property rights or otherwise.
Telcog Communications will retain sole ownership of any such suggestions, comments and/or other feedback and Customer will not provide
any such suggestions, comments and/or other feedback subject to any terms that would impose any obligation on Telcog Communications or
any of its customers or partners.
14. Limitation of Liability.
(a) IN NO EVENT SHALL Telcog Communications BE LIABLE FOR ANY ALLEGED, DIRECT, INDIRECT,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION,
LOST PROFITS AND ALL BUSINESS OR OPERATIONAL RELATED LOSSES) ARISING OUT OF OR RELATED TO
Telcog Communications, ANY Telcog Communications SERVICES, CONTACT US PLUS AND/OR PRODUCTS AND/OR SERVICES
PROVIDED PURSUANT TO THIS AGREEMENT, THE CPE, EQUIPMENT, MOBILE DEVICES, AND/OR ANY
PRODUCTS OR SERVICE PROVIDED BY THIRD PARTIES PURSUANT TO THIS AGREEMENT.
(b) Telcog Communications’S AGGREGATE LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS
AGREEMENT IS LIMITED TO SERVICE CREDITS THAT WILL NOT EXCEED THE LESSER OF (I) THE FEES
ACTUALLY PAID TO Telcog Communications BY CUSTOMER PURSUANT TO THIS AGREEMENT DURING THE PRECEDING
TWELVE (12) CALENDAR MONTHS, OR (II) ONE THOUSAND US DOLLARS ($1,000.00).
15. Indemnity. Customer will indemnify and hold harmless Telcog Communications and its stockholders, directors, officers, employees,
agents, licensors, representatives and affiliates from and against any and all actual or alleged losses, costs, claims, liability of any
kind, damages (including to any tangible property or bodily injury to or death of any person), or expense of whatever nature,
(including reasonable attorneys’ fees) to or by any third party, relating to or arising from (a) the use of Telcog Communications, any
Telcog Communications Services, Telcog Communications Manager and/or Contact Us Plus provided to Customer and/or any End User, whether or
not Customer and/or any End User has knowledge of or has authorized access for such use, (b) any damage to or destruction of
CPE, equipment, or Mobile Devices not caused by Telcog Communications or its agents, and (c) any breach of this Agreement by
Customer. Customer (or Customer’s Phone System vendor or other service provider) will be solely responsible for implementing
any installation, configuration, and/or connection of any Customer Equipment and has the sole and exclusive responsibility for
the security and integrity of such Customer Equipment, if any. Customer therefore will indemnify and hold harmless
Telcog Communications and its stockholders, directors, officers, employees, agents, licensors, representatives and affiliates from and
against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees (including reasonable
attorneys’ fees) on the part of or which may be incurred by Customer or a third-party relating to or arising from the use or
operation of Customer Equipment. Customer’s indemnification in this Section 15 includes any actual or alleged losses or claims
in connection with unauthorized access to or use of Telcog Communications, any Telcog Communications Services, Telcog Communications Manager and/or
Contact Us Plus by any third-party through Customer Equipment, regardless of whether such unauthorized access is
unintentional, accidental, intentional or fraudulent and regardless of whether Customer had knowledge of such unauthorized
access. In all such cases of unauthorized access through or to Customer Equipment, Customer retains full and sole responsibility
for any and all charges for Telcog Communications and the use of Telcog Communications Manager, any Telcog Communications Services, and/or Contact Us
Plus as otherwise provided in this Agreement. If Telcog Communications grants Customer access to Telcog Communications (or Customer’s
Telcog Communications account) by Electronic Tools (including, without limitation, Telcog Communications Manager), Customer agrees that it is
fully and exclusively responsible for all information accuracy, charges, costs, transactions, and activities conducted through such
Electronic Tools. Customer agrees that it is fully and exclusively responsible to safeguard, monitor, manage, and maintain access
to Telcog Communications (including, without limitation, Telcog Communications Manager) by any Electronic Tools, and to only allow authorized
use of such Electronic Tools to Customer’s Administrator(s) or Account Administrator, as the case may be. Customer will
indemnify and hold harmless Telcog Communications and its stockholders, directors, officers, employees, agents, licensors, representatives
and affiliates from and against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees
(including reasonable attorneys’ fees) on the part of or which may be incurred by Customer, or a third-party, relating to or arising
from the use or operation of Electronic Tools, including, without limitation, any actual or alleged losses or claims in connection
with unauthorized access to, use, transactions, or activity conducted through the Electronic Tools, regardless of whether such
unauthorized access is unintentional, accidental, intentional, or fraudulent, and regardless of whether Customer had knowledge of
such unauthorized access. In all such cases of unauthorized access through or to Telcog Communications by Electronic Tools (including,
without limitation, Telcog Communications Manager), Customer retains full and sole responsibility for any and all charges for Telcog Communications
and the use of Telcog Communications, any Telcog Communications Services, Telcog Communications Manager and/or Contact Us Plus as otherwise provided in
this Agreement.
16. Acceptable Use Policy; Additional Privacy Matters.
(a) All use of Telcog Communications, any Telcog Communications Services and/or Telcog Communications Manager must comply with
Telcog Communications’s Acceptable Use Policy, which is posted at www.Telcog Communications/legal/, and is incorporated herein by reference. By
using Telcog Communications, any Telcog Communications Services and/or Telcog Communications Manager, Customer agrees to comply with the AUP, as
modified by Telcog Communications from time to time in Telcog Communications’s sole discretion. Any amendment to the AUP will be effective
immediately upon the posting of the modified AUP at www.Telcog Communications/legal/. Violation of the AUP by Customer (or any of
Customer’s End Users) will constitute a material breach of this Agreement. Customer is solely responsible and liable for all use
of Telcog Communications, any Telcog Communications Services and/or Telcog Communications Manager by any of Customer’s End Users, even if such use
occurs without Customer’s permission.
(b) If Customer (or any applicable End User) is a “covered entity” or a “business associate” thereof, as each term is
used pursuant to the Health Insurance Portability and Accountability Act of 1996 (as amended, “HIPAA”) or are otherwise
subject to any HIPAA, related or similar legal requirement, Customer is solely responsible to ensure full compliance therewith.
Customer will indemnify, defend and hold harmless Telcog Communications from any claim, loss, damage, cost or expense (including,
without limitation, attorneys’ fees) arising out of any claim under HIPAA or any related or similar requirements of any applicable
jurisdiction. Customer acknowledges that Telcog Communications is not a Business Associate as such term is defined under HIPAA in
connection with its provision of services under this Agreement.
17. Service Moves. Telcog Communications requires a Service Address and applicable Registered Address(es). Customer may not move
service from a Service Address or any applicable Registered Address without prior written notification from Customer to
Telcog Communications. If Customer fails to notify Telcog Communications in writing of any move of service from a Service Address or any
applicable Registered Address, including, without limitation, through Telcog Communications Manager, Telcog Communications, in its sole
discretion, may immediately suspend Customer access to or use of Telcog Communications until Telcog Communications accepts and completes any
applicable Customer request to move service from a Service Address or any applicable Registered Address. Customer
acknowledges that failure to properly notify Telcog Communications of an intended move from a Service Address or any applicable
Registered Address may result in, among other things, Customer’s inability to use 911 Services, including E911 Services, if
applicable. Customer acknowledges that said failure may cause incorrect routing of emergency services and any consequences of
such rests solely with Customer. Additionally, Customer understands that continuation of existing ELS DIDs may be restricted
by the location of the Service Address or any applicable Registered Address to be moved. A move of a Service Address or any
applicable Registered Address may require a new agreement and/or Service Term. For clarity, no asserted or attempted move of a
Service Address or any applicable Registered Address will result in any right of Customer to terminate this Agreement.
18. Resale Prohibition. Telcog Communications, any Telcog Communications Services, Telcog Communications Manager and Contact Us Plus each is provided
for the use of Customer and Customer’s End Users only. Customer may not under any circumstances resell or offer to resell
Telcog Communications, any Telcog Communications Services and/or Telcog Communications Manager. Any failure by Customer to comply with this Section
18 will constitute a material breach of this Agreement. In addition to any other rights or remedies that Telcog Communications may have as
a result of such material breach, including, without limitation, termination of this Agreement, Customer also will be liable to
Telcog Communications for any additional charges and/or damages which may be incurred by Telcog Communications as a result of any unauthorized
resale or offer to resell.
19. Third Party Beneficiaries. The parties do not intend by the execution, delivery, or performance of this Agreement to confer
any benefit, direct or incidental, upon any person or entity that is not a party to this Agreement.
20. Dispute Resolution Process; Governing Law.
(a) It is the mutual desire of the parties to promptly and fully resolve any dispute arising in connection with this
Agreement in good faith, confidentially, and informally with minimal transaction costs; no public statement may be made by any
party regarding any such dispute. If either party determines that the dispute cannot be resolved informally, then such party will
initiate an escalation process by giving written notice (“Escalation Notice”) to the other party. Each party will name one
executive as its representative, to be a person knowledgeable of the subject matter in dispute and someone with authority to
discuss the dispute (“Officers”). The Officers will meet in person or by conference call, together with any persons assisting them,
within fifteen (15) days after delivery of the Escalation Notice. All negotiations conducted by the Officers are confidential and
will be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and any state rules of
evidence. The Officers will conduct such additional meetings as they deem necessary to exchange relevant information, will
appoint staff to engage in resolution of any disputed facts, and will attempt to resolve the dispute. Should the Officers be unable
to resolve the dispute within such fifteen (15) days, or within such additional time as the parties may otherwise agree to in
writing, either party may demand mediation, whereupon the parties will, in good faith, mediate the dispute no later than thirty
(30) days after such demand through the services of a mutually selected mediator, the cost of whom will be borne equally by the
parties, at a date and location selected by the mediator after consultation with the parties. IF THE DISPUTE IS NOT
RESOLVED AFTER APPLYING THE ESCALATION PROCEDURES SET FORTH ABOVE, THE PARTIES AGREE TO
WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY JUDICIAL PROCEEDING ARISING UNDER OR RELATED TO THE
SUBJECT MATTER OF THIS AGREEMENT, AND AGREE TO SUBMIT ALL CONTROVERSIES, CLAIMS AND
MATTERS OF DIFFERENCE TO ARBITRATION ACCORDING TO THE COMMERCIAL RULES AND PRACTICES OF
THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). Arbitration hereunder will occur within sixty (60) days of the
date of submission before a single neutral arbitrator having significant experience in the subject matter of this Agreement and
who will selected in accordance with AAA rules. Arbitration proceedings will take place in Orange County, California.
Discovery will be permitted, including the use of interrogatories, requests for admission and production of documents and
depositions. If the amount claimed to be in dispute is less than $500,000, all applicable expedited procedures of the AAA will
apply. The arbitrator’s fees and costs of the arbitration will be borne by the party against whom the award is rendered, except that
if the arbitrator issues a split decision, granting partial relief to both parties, the arbitrator will equitably allocate the arbitrator’s
fees and other costs. Each party will pay its attorney’s fees related to any dispute related to this Agreement. The arbitration award
will be final and binding on both parties of this Agreement, will not be subject to any appeal and will be enforceable in any court
of competent jurisdiction.
(b) ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR IN COURT, WILL BE
CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS ACTION OR REPRESENTATIVE ACTION
OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. CUSTOMER WILL NOT BE A
CLASS REPRESENTATIVE, CLASS MEMBER OR OTHERWISE PARTICIPATE IN A CLASS, CONSOLIDATED OR
REPRESENTATIVE PROCEEDING.
(c) This Agreement will be governed by, construed under and enforced in accordance with the laws of the State of
California without reference to its choice of law principles or the United Nations Convention on the International Sale of Goods.
In the event any party brings a civil action or initiates judicial proceedings of any kind related to this Agreement (except for
actions to enter or collect on judgments), the parties consent to the exclusive personal jurisdiction and venue of the federal and
state courts located in Orange County, California and the prevailing party will be entitled to recover its costs, including
reasonable attorney’s fees.
21. Notices. Any notice(s) to Customer pursuant to this Agreement, including, without limitation, any notices of material changes
to this Agreement or any applicable Supplement, will be sent to Customer’s primary contact of record as provided by Customer
to Telcog Communications; if Customer has not identified any alternative primary contact of record, Customer’s primary contact of record
is Customer’s Administrator (or any Customer’s Administrator, if more than one). Notice(s) to Customer will be deemed to be
delivered when sent via one or any combination of the following on Telcog Communications’s books and records: Customer’s email
address(s) (or via Telcog Communications Manager); Customer’s facsimile number; and/or next-day delivery service (for example, FedEx
or the United States Postal Service) to Customer’s physical or postal address. Any notice(s) to Telcog Communications pursuant to this
Agreement will be sent via next-day delivery service (for example, FedEx or the United States Postal Service) to Telcog Communications at
171 S. Anita Drive Suite 120, Orange, CA 92868, Attention: General Counsel.
22. Miscellaneous. Customer is not relying on any affirmation of fact, description, or promise from (or purported to be from) any
person or entity, nor any oral or written representation or warranty that is not expressly included in this Agreement. Any
alterations or additions to this Agreement made by Customer by any means will not be considered part of this Agreement.
Telcog Communications’s failure to insist upon or enforce strict performance of or strict compliance with any provision of this Agreement
shall not be construed as a waiver of any provision or right; neither the course of conduct between the parties nor trade practice
shall act to modify any provision of this Agreement or any Supplement entered into from time to time pursuant to this
Agreement. This Agreement may only be modified, or any rights under it waived, by a separate written document executed by
both parties.. In the event of a conflict between this Agreement and any applicable tariff, the tariff will prevail. Customer may not
assign this Agreement, by operation of law or otherwise, including, without limitation, pursuant to any merger, stock purchase or
other change in control of Customer, without Telcog Communications’s prior written consent. This Agreement will be binding on the parties
hereto and their respective personal and legal representatives, successors, and permitted assigns. If any provision of this
Agreement is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement
will not be affected thereby. In the event any specified time frame or deadline denotes calendar days, it is agreed that when the
last date of required action or response falls on a weekend or holiday, the action and/or deadline will automatically extend to the
next business day. Agreement headings are provided for reference purposes only.
23. 911 Activation. Telcog Communications Manager will confirm to Customer’s Administrator(s) via Telcog Communications Manager the
availability of applicable 911 Services upon activation of any applicable Telcog Communications Service. Any 911 Services available with
any Telcog Communications Service are subject to the service limitations described in the Customer Notice of 911 and E911 Service
Limitations, posted at www.Telcog Communications/legal/.
THIS AGREEMENT, TOGETHER WITH ANY ATTACHMENTS REFERENCED IN THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE TERMS OF ANY
APPLICABLE SUPPLEMENT, ANY APPLICABLE SERVICE PLAN, THE RATES POSTED
AT WWW.Telcog Communications/LEGAL/, THE ACCEPTABLE USE POLICY POSTED
AT WWW.Telcog Communications/LEGAL/, THE CUSTOMER NOTICE OF 911 AND E911
SERVICE LIMITATIONS POSTED AT WWW.Telcog Communications/LEGAL/, OR ANY OTHER
ADDENDA ENTERED INTO FROM TIME TO TIME, EACH OF WHICH IS
INCORPORATED HEREIN BY REFERENCE, CONSTITUTE THE ENTIRE
UNDERSTANDING BETWEEN CUSTOMER AND Telcog Communications, INC. WITH RESPECT
TO THE SERVICE(S) PROVIDED PURSUANT TO THIS AGREEMENT. CUSTOMER IS
NOT RELYING ON ANY AFFIRMATION OF FACT, DESCRIPTION, OR PROMISE FROM
(OR PURPORTED TO BE FROM) ANY PERSON OR ENTITY, NOR ANY OTHER ORAL
OR WRITTEN REPRESENTATION OR WARRANTY THAT IS NOT EXPRESSLY
INCLUDED IN THIS AGREEMENT.
BY CLICKING “I AGREE,” YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE
READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS
AND CONDITIONS SET FORTH IN THIS AGREEMENT AND WILL BE BOUND BY
SUCH TERMS. YOU ALSO AGREE THAT YOU ARE ABLE TO ELECTRONICALLY
ACCESS AND PRINT THIS AGREEMENT AND THAT CLICKING “I AGREE”
CONSTITUTES YOUR VALID ELECTRONIC SIGNATURE ON THIS AGREEMENT.