• TeleIP Terms & Conditions

    1.Scope of Services.

    The terms and conditions stated in this Agreement shall apply with respect to the provision of any and all telecommunications and related services by TGN (“Services”) on behalf of itself and its Affiliates to Customer and its Affiliates and as further described in one or more Customer Service Agreements executed pursuant to this Agreement (each, a “CSA”). TGN shall provide the Services set forth in the CSAs in accordance with the terms of this Agreement and the applicable CSA. The Services will be performed at the location(s) specified in the applicable CSA (each, a “Location”) by TGN or by an Affiliate or subcontractor of TGN authorized to provide the Services in the applicable jurisdiction. The terms and conditions of this Agreement are, and shall be, applicable to the Services provided to the Customer. For the avoidance of doubt, this Agreement shall serve as the master agreement and governing documents with respect to each CSA executed pursuant to and referencing this Agreement. In the event of a conflict between this Agreement and a CSA, the MSA controls.

    “Affiliate” means an entity that controls, is controlled by, or is under common control with, a Party to this Agreement. For purposes of this definition, “control” means the ownership of fifty percent or greater of the voting securities or assets of an entity.

     

    2.Equipment.

    Any sale by TGN to Customer of equipment (“Equipment”) shall be specifically set forth in the subject CSA and the terms of any such sales shall be governed by this Agreement. Unless otherwise expressly stated in the applicable CSA, all Equipment shall be in new condition. TGN will ship Equipment to Customer at the Location on FCA TGN shipping terms, with title and risk of loss transferring upon delivery to the carrier. Shipping costs and charges will be set forth in such CSA. TGN shall provide Customer all associated user documentation for such Equipment.

     

    3.Right to Access.

    TGN hereby grants to Customer, for, internal use only, a non-exclusive, non-transferable, worldwide right to access the TGN Platform during the Term of this Agreement and the applicable CSA(s) in accordance with and subject to the terms and conditions of this Agreement. Customer may permit any of its agents, contractors and third party service providers to use the TGN Platform in connection with any outsourcing, facilities management, programming, processing or support services provided to Customer by any such third party; provided that such third party services are integrated into or associated with the Services, and such parties use the TGN Platform exclusively for the benefit of Customer. This non-exclusive, non-transferable right to access the TGN Platform shall immediately expire upon termination of this Agreement or with respect to a Location in the event that a CSA shall expire or be terminated, subject to the terms of Section 8 of this Agreement.

    The term “TGN Platform” means the Tele IP® platform or other similar platform made available by TGN to Customer pursuant to this Agreement, including all software applications, functionality, tools, interfaces, documentation and other materials included therein. TGN retains all right, title and interest (including all intellectual property rights) in the TGN Platform. No other rights to the TGN Platform are granted hereunder.

     

    4.Term.

    This Agreement shall be effective as of the Effective Date and shall continue for a period of time as outlined by the Sales Order from the Effective Date (the “Term”), unless earlier terminated in accordance with the terms and provisions of the Agreement. Upon expiration of the Term, the Agreement and all active CSAs shall extend the Term to the end date of the latest CSA. This Agreement shall renew automatically for the same Term under the same terms as the current Agreement, unless either Party delivers to the other Party written notice of such Party’s intent not to renew this Agreement at least ninety (90) days prior to expiration of the then current Term.

     

    5.Rates and Charges.

    a) The applicable CSA will contain (i) the monthly recurring charges for the Services (“Monthly Recurring Charges” or “MRC”) and (ii) the one-time charges in connection with
    the Services (“Non-Recurring Charges” or “NRC” or “Setup Service Charges”). Unless otherwise agreed by the parties in writing, the rates set forth in a CSA shall apply for the
    duration of the term of the CSA only with respect to the Services provided at the Location (or other defined user group, in the case of Remote Users) expressly listed on the subject
    CSA. It is agreed and understood by the Parties that the pricing may differ among CSAs under this Agreement. The fees, costs and expenses associated with each additional Customer
    location not listed on a CSA shall be separately agreed to by the Parties and documented by a separate CSA or in a written modification to an existing CSA executed by both Parties.
    With respect to any services outside the scope of the Services for which a unit cost is not identified in the relevant CSA (“New Services”), unless otherwise agreed by the parties in
    writing, TGN will set rates and terms that shall apply to the New Services. TGN shall provide Customer with a current rate schedule for New Services from time to time and at the
    request of Customer. Except as expressly set forth in this Agreement, the applicable CSA, or as otherwise agreed to by the Parties in writing, Customer shall be responsible for any
    expenses incurred by TGN in connection with the performance of TGN’s obligations under this Agreement.

    b) In addition to the Minimum Monthly Recurring Charges and Non-Recurring Charges, Customer will pay the applicable per minute rates set forth in the CSA (charged in 6 second increments), based on Customer’s actual use of the Services exceeding customer’s agreed upon Minutes of Use (MSO) (collectively, the “Usage Charges”).

     

    6.Taxes and Surcharges.

    In addition to the rates and charges for the Service(s) described above and in the applicable CSA(s), Customer shall be responsible for payment of all local, state and federal taxes, fees and surcharges, however designated, imposed on or based upon the provision, sale, or use of the Services and any Equipment, expressly excluding any taxes that are based on TGN’s net income. Customer shall be responsible for the payment of all surcharges in effect from time to time, including but not limited to USF, PICC, and payphone surcharges, as required or permitted by applicable law, regulation or tariff. To the extent any sale under this Agreement is claimed by Customer to be subject to a tax exemption, and Customer provides TGN with all proper and required tax exemption documents and certificates required by the applicable statutes and/or regulations of the jurisdiction providing said tax exemption, TGN agrees to exempt Customer from the collection of taxes to the extent warranted by such certificate(s) and documents. Failure to timely provide said certificate, in TGN reasonable discretion, will result in no exemption being available to Customer for any period prior to the date that the Customer presents the required tax exemption documents and certificates.

     

    7.Billing and Payment.

    a) Non-Recurring Charges. Notwithstanding anything to the contrary in this Agreement, the Total Initial Payment set forth in a CSA shall be due and payable upon receipt of invoice by Customer. TGN shall not be required to order any Equipment or commence any Services prior to its receipt from Customer of the Total Initial Payment.

    b) Monthly Recurring Charges. Monthly Recurring Charges shall be due and payable by Customer upon activation and shall begin immediately upon the earlier of (i) the date on which the Service is provisioned and available on the TGN Platform (the “Service Commencement Date”) or (ii) or Customer’s first use of the Services, provided that Network Connectivity charges shall be due and payable upon Service activation. Customer shall have the right to dispute any such Monthly Recurring Charges and Usage Charges in accordance with and subject to the terms and provisions of this Section 7. Customer will receive a bill on or about the date of activation each month for the current month’s Service (including pro- rata charges for Services added by Customer during the prior month), less any Service Credits earned for such month. All undisputed bills are due and payable upon receipt (“Due Date”). All invoices shall be deemed received within five (5) days of the invoice date. Customer must provide TGN with written notice of any disputed charge(s) within thirty (30) days after the date of the invoice for the subject charges. Failure by the Customer to dispute any charges within the applicable period shall be deemed an affirmative waiver by Customer of any right to thereafter dispute the subject charges. If the dispute is delivered to TGN in writing on or before the Due Date for the respective invoice, Customer may pay the invoiced amount less the disputed amount on or before the Due Date. Customer shall have no right to withhold amounts not disputed in writing to TGN. Any dispute notice of Customer shall set forth in writing in reasonable detail the information concerning the disputed charges and reasons for the dispute. TGN and Customer shall attempt in good faith to promptly resolve any reasonable objection to the invoiced amount. If the dispute is subsequently resolved in favor of TGN, Customer shall pay the disputed amount previously withheld within five (5) days of such resolution (if and to the extent that the disputed amount has been withheld). If the dispute is subsequently resolved in favor of Customer, at Customer’s election, TGN shall issue a credit on Customer’s subsequent invoice(s) or refund to any incorrectly invoiced amount to Customer. For avoidance of doubt, the Parties agree that Customer shall not be permitted to dispute any invoiced amount during a time period that Customer is in default under this Agreement. In the event Customer fails to pay any invoice when due, TGN shall notify Customer regarding its failure to pay such invoice. If after TGN has provided such notice, Customer continues to fail to pay such invoice(s) within five (5) days after such notice, TGN may terminate this Agreement or suspend Service, and shall be entitled to seek and exercise all rights and remedies permitted hereunder and under applicable law or in equity. Customer shall pay all reasonable costs of TGN, including court costs and reasonable attorneys’ fees, incurred in connection with collecting all sums due under this Agreement, excluding those actions initiated by Customer against TGN, provided final judgment (beyond all appeals) is rendered in favor of TGN by a court of appropriate jurisdiction. Customer waives any right of offset. TGN is hereby authorized to bill and collect customer via secure credit card or ACH on file.

    c) Overage Usage Charges. Usage Overage Charges shall be due and payable by Customer in arrears and shall begin accruing immediately upon the earlier of (i) or Customer’s first use of the Usage Overage Services, provided that Network Connectivity charges shall be due and payable upon Service activation. Customer shall have the right to dispute any such Monthly Recurring Charges and Usage Charges in accordance with and subject to the terms and provisions of this Section 7. Customer will receive a bill on or about the date of activation each month for the current month’s, less any Service Credits earned for such month. All undisputed bills are due and payable upon receipt (“Due Date”). All invoices shall be deemed received within five (5) days of the invoice date. Customer must provide TGN with written notice of any disputed charge(s) within thirty (30) days after the date of the invoice for the subject charges. Failure by the Customer to dispute any charges within the applicable period shall be deemed an affirmative waiver by Customer of any right to thereafter dispute the subject charges. If the dispute is delivered to TGN in writing on or before the Due Date for the respective invoice, Customer may pay the invoiced amount less the disputed amount on or before the Due Date. Customer shall have no right to withhold amounts not disputed in writing to TGN. Any dispute notice of Customer shall set forth in writing in reasonable detail the information concerning the disputed charges and reasons for the dispute. TGN and Customer shall attempt in good faith to promptly resolve any reasonable objection to the invoiced amount. If the dispute is subsequently resolved in favor of TGN, Customer shall pay the disputed amount previously withheld within five (5) days of such resolution (if and to the extent that the disputed amount has been withheld). If the dispute is subsequently resolved in favor of Customer, at Customer’s election, TGN shall issue a credit on Customer’s subsequent invoice(s) or refund to any incorrectly invoiced amount to Customer. For avoidance of doubt, the Parties agree that Customer shall not be permitted to dispute any invoiced amount during a time period that Customer is in default under this Agreement. In the event Customer fails to pay any invoice when due, TGN shall notify Customer regarding its failure to pay such invoice. If after TGN has provided such notice, Customer continues to fail to pay such invoice(s) within five (5) days after such notice, TGN may terminate this Agreement or suspend Service, and shall be entitled to seek and exercise all rights and remedies permitted hereunder and under applicable law or in equity. Customer shall pay all reasonable costs of TGN, including court costs and reasonable attorneys’ fees, incurred in connection with collecting all sums due under this Agreement, excluding those actions initiated by Customer against TGN, provided final judgment (beyond all appeals) is rendered in favor of TGN by a court of appropriate jurisdiction. Customer waives any right of offset. TGN is hereby authorized to bill and collect customer via secure credit card or ACH on file.

     

    8.Reasonable Use.

    Unusually high usage of the Service attributable to individual Accounts may impair TGN’s ability to provide the Services and/or indicate the misuse of the Services. Accordingly, for all Service Plans, reasonable use means that your use of the Service does not materially impair TGN’s ability to provide the Service to other users.

    a) Unlimited or Unmetered Plans. All unlimited or unmetered plans (“Unlimited Plans”) are subject to all of the Prohibited Use and Reasonable Use limitations set forth in the Reasonable Use Policy. In addition, all unlimited or unmetered plans are subject to the following terms and conditions:

    • Unlimited Plans are for normal residential or business use.
    • Unlimited Plans cannot, under any circumstances, be used for call centers, continuous or extensive call forwarding, autodialing, fax blasting, telemarketing (including without limitation charitable or political solicitation and/or polling), junk faxing, fax spamming, or other high volume or multi-person calling or faxing purposes.
    • Excessive Use of Unlimited Plans is prohibited. “Excessive Use” means that your use exceeds the monthly minutes per line used by 98% of all reseller Unlimited Plan customers. Excessive Use is measured on a monthly basis. For example, if you use 7,500 minutes in one month per line and 98% of all TGN Unlimited Plan customers used less than 7,500 minutes that month per line, your use would constitute Excessive Use and would be in violation of this Reasonable Use Policy.

    b) TGN reserves the right to review and monitor your usage of your Unlimited Plan at any time (i) to calculate Excessive Use and (ii) compliance with this Reasonable Use Policy, including that there is no Excessive Use.

    c) Except where prohibited by law, if you violate the Reasonable Use Policy, including but not limited to by Excessive Use of the Service, you hereby acknowledge and agree that TGN may modify, suspend, terminate, disconnect or take any other reasonable action regarding your Service to prevent continued violation of this Reasonable Use Policy (a “Plan Modification”), including charging you on per minute basis, at TGN’s published per minute rates, for any Excess Use or automatically converting your Unlimited Plan to a metered plan. You hereby agree to pay TGN, and hereby authorize TGN to charge your credit card or process an ACH transaction for any additional fees, charges and penalties related to any Plan Modification.

     

    9.Termination.

    a) Either party may terminate this Agreement or the applicable CSA on thirty (30) days’ written notice if the other party materially breaches the terms of the Agreement or a CSA, and such breaching party fails to cure the breach within such thirty (30) day period; provided, however notwithstanding anything to the contrary herein provided, the cure period shall be fifteen (15) days with respect to the payment of any sum due from Customer to TGN under this Agreement.

    b) A party may terminate this Agreement upon written notice to the other party if (i) the other party dissolves or becomes insolvent or bankrupt; (ii) the other party makes an assignment for the benefit of creditors; (iii) the other party suspends the transaction of its usual business or consents to the appointment of a trustee or receiver; (iv) a trustee or receiver of the other party is appointed; or (v) any bankruptcy, reorganization, insolvency or similar proceeding is instituted by or against the other party and not dismissed within thirty
    (30) days.

    c) The defaulting party shall pay all reasonable costs of the other party, including court costs and reasonable attorneys’ fees, incurred in connection with such default under this Agreement.

    d) Customer shall have the right to terminate this Agreement or any CSA for convenience upon ninety (90) days’ prior written notice to TGN, subject to payment of a “Termination Charge” calculated as: (i) the amount of the most recent Monthly Recurring Charges (MRC) due under this Agreement (including all CSAs), multiplied by the number of months remaining in then-current Term of the CSA(s) in effect at the date of termination. Customer shall be required to pay the full amount of the Termination Charge within fifteen (15) days of delivery by Customer of a notice of Termination in accordance with this Section and TGN is hereby authorized to bill and collect customer via secure credit card or ACH on file.

    e) If this Agreement is terminated by TGN due to Customer’s material breach in accordance with this Section 8, including for nonpayment of fees or charges due from Customer to TGN as and when the same are due, Customer shall pay to TGN, immediately upon demand, (i) all amounts then due and unpaid, plus (ii) the Termination Charge and other costs due from Customer. TGN is hereby authorized to bill and collect customer via secure credit card or ACH on file.

     

    10.Termination Assistance Services.

    Upon the expiration or termination of this Agreement for any reason other than material breach by Customer, TGN shall, to the extent reasonably requested by Customer, (i) continue to provide the Services in accordance with this Agreement for each CSA location upon expiration or termination at the rates in effect immediately prior to such expiration or termination (the “Termination Assistance Period”); and (ii) provide such assistance as reasonably required by Customer to transfer the Services, including assigned telephone numbers and other identifiers, to another vendor or to Customer itself, such assistance to be billed at TGN’s then-current hourly rates (collectively, “Termination Assistance Services”). Notwithstanding anything to the contrary in this Agreement, Customer shall pay all charges and sums then due under this Agreement, as well as charges for Termination Assistance Services, prior to TGN providing Termination Assistance Services. Customer shall pay all other charges and costs incurred during the Termination Assistance Period upon receipt of invoice. TGN is hereby authorized to bill and collect customer via secure credit card or ACH on file.

     

    11.Integration of Third Party Applications and Services.

    Third parties may make available third- party products or services, including, for example, non-TGN Applications and implementation and other consulting services (“Non-TGN Applications”). Any acquisition by Customer of such non-TGN Applications, and any exchange of data between Customer and any third-party, is solely between Customer and such third party.

    TGN does not warrant or support, and shall have no liability whatsoever for, any NonTGN Applications, whether or not they are designated by TGN as “certified” or otherwise, except as specified in a CSA.

    a) Third Party Applications and customer data. If Customer installs or enables a Non-TGN Application for use with a Service, Customer grants TGN permission to allow the provider of that non-TGN Application to access customer data as required for the interoperation of that non-TGN Application with the Service. TGN is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by a Non-TGN Application.

    b) Integration with Non-TGN Applications. The Services may contain features designed to interoperate with Non-TGN Applications. To use such features, Customer may be required to obtain access to Non-TGN Applications from their providers, and may be required to grant TGN access to Customer account(s) on the Non-TGN Applications. If the provider of a Non-TGN Application ceases to make the Non-TGN Application available for interoperation with the corresponding Service features on reasonable terms, TGN may cease providing those Service features without liability until the provider makes the Non-TGN Application available.

     

    12.Compliance with Laws.

    Each party shall comply with all applicable international, federal, state and local laws, regulations, court decisions or administrative rulings applicable to the provision or use of the Services in the relevant jurisdiction, including applicable privacy, telecommunications and similar laws. Without limiting the generality of foregoing, if Customer utilizes the Services for the purpose of making telephone solicitations, Customer must comply with the applicable data protection legislation (including, but not limited to, national do- not-call requirements and the rules as set forth in 47 C.F.R. Section 64.1200 and 16 C.F.R. Part 310).

     

    13. Regulatory Approval.

    This Agreement shall be subject to and governed by any applicable regulatory agencies or other governmental authority having jurisdiction over the subject matter hereof. Should any approval or authority be required for any acts, duties or obligations to be performed hereunder, the Parties will cooperate in securing the same.

     

    14. Emergency Services

    Customer hereby represents and warrants that it understands any 911 emergency dialing provided by TGN is not traditional 911 emergency dialing. Customer understands that TGN can only provide 911 service in certain locations, and that TGN can suspend services should the device(s) be physically relocated to an address where TGN cannot provide 911 services and all liability for 911 service changes are the responsibility of the customer.

    a) The street address provided by customer is the registered location and is the address that will be reported to the 911 system. Customer, and only customer, has the absolute duty and right to notify TGN of any change in the registered location.

    b) Customer further understands that the 911 service provided by TGN (“911 services”) is limited by
    Comparison to traditional 911 phone service including, but not limited to the ways described in this section. Voip calls travel over the internet and can be slowed in cases where there is a network connection failure, degradation of bandwidth, denial of service attacks, worms, hackers, viruses, or any other known or unknown conditions that interfere with the speed or capacity of the internet of the customer’s data connection(s) including loss of electrical power to a registered location. Voip calls may not be routed to the correct call 911 center and/or may not be answered with the same priority as other 911 calls. Caller information (phone number / address) may not be displayed for the

    911 center for voip calls. TGN 911 service will not work if the voip device is damaged or becomes defective.

    c) customer agrees that TGN, its underlying carriers and any third parties involved in the routing, handling, delivery or answering of 911 services shall not incur any liability, direct or indirect, to customer, its employees, customers or licensees arising out of the provision or failure to provide 911 services to end users or to any holder of a telephone number issued by TGN pursuant to this agreement who dials or attempts to dial the digits “911” or any other emergency services number. Customer shall indemnify and hold TGN harmless from and against any third party claims, suits, loss, damage or liability arising out of the use of or inability to use the 911 services, to dial the digits “911” or to any other person who may be affected by the dialing of the digits “911” by, through or under customer in connection with this agreement.

     

    15. Unauthorized Use of Services.

    Customer, and not TGN, shall bear the risk of loss and assume all liability arising from any unauthorized or fraudulent usage of services provided under the agreement to customer. TGN reserves the right, but is not required, to take any and all action it deems appropriate (including blocking access to particular calling numbers or geographic areas or suspending access to the services) to prevent or terminate any fraud, abuse or illegal activities in connection with the services, or any use thereof, provided, however, that any such action shall be consistent with applicable federal and state laws, rules, and regulations. Any such action by customer shall be deemed a material breach of the agreement by customer.

     

    16. Warranties.

    a) Each party represents and warrants to the other party that it has the requisite power and authority to enter into this agreement and to carry out all activities and transactions contemplated hereunder. TGN further represents and warrants that TGN shall provide the services in a professional and workmanlike manner and in accordance with applicable industry standards.

    b) Except as expressly provided herein, neither party makes any warranty or representation of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, title, fitness for a particular purpose or non-infringement. TGN specifically disclaims all liability and obligations with respect to any third-party service providers.

     

    17. Limitation of Liability.

    Neither party shall be liable for any indirect, incidental, special, punitive, or
    Consequential damages, or any loss of revenue or profits (excluding fees due under this agreement), data, or data use. TGN’s aggregate liability for all damages arising out of or related to this agreement, whether in contract, tort, or otherwise, shall in no event exceed the total amounts actually paid to TGN under the csa that is the subject of the claim in the twelve (12) month period immediately preceding the event giving rise to such claim. This section 16 shall not apply to confidentiality violations.

     

    18. Indemnification

    a) Each Party shall indemnify, defend and hold harmless the other Party, its Affiliates and each of their officers, directors, employees and agents from and against all claims, suits and actions brought against the other Party, and all resulting liabilities, damages, losses, and costs awarded by a court or included as part of a final settlement (in addition to reasonable attorneys’ fees and disbursements) (collectively “Claims”), arising from any claims made by third parties that such Party has violated applicable laws or regulations.

    b) In addition, TGN shall indemnify, defend and hold harmless Customer from and against all Claims made by third parties that the Services directly infringes or misappropriates the intellectual property rights of such third party (“IP Claims”). However, TGN shall not be responsible for any IP Claims if they result from (i) Customer’s use of the Services in violation of any law, rule or regulation or in a manner that infringes or violates the rights of others or is otherwise not permitted or intended hereunder, (ii) any information, content or materials provided by Customer (“Customer Materials”), (iii) use of the Services in combination with any content, data, products or services not supplied by TGN, (iv) modification of the Services by Customer or anyone acting on Customer’s behalf, or (v) use of the Services after receipt of written notice from TGN to stop using the Services. This paragraph states Customer’s sole remedies in connection with any IP Claims. Customer shall indemnify, defend and hold harmless TGN for any Claims made by third parties arising from any Customer Materials.

    c) Procedure. The indemnifying party’s obligations hereunder are conditioned on the indemnified party (i) promptly notifying the indemnifying party in writing of the Claim for which indemnification is sought, (ii) reasonably cooperating with the indemnifying party in connection with, and (iii) tendering sole control over the defense and/or settlement of the Claim. The indemnified party shall have the right to provide for a separate defense with counsel of its own choosing at its own expense.

     

    19. Confidentiality.

    a) Confidential Information” means all nonpublic information relating to a Party or its Affiliates that is (i) if provided in writing, is marked or labeled as confidential or proprietary, or (ii) if provided verbally, is designated as confidential at the time of disclosure, or (iii) even if not so marked, labeled or identified, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation, (A) all nonpublic information relating to a Party’s or its Affiliates’ technology, customers, employees, business plans, agreements, finances and other business affairs, (B) the TGN Platform, and (C) the terms of this Agreement. Confidential Information does not include any information that (1) has become publicly available without breach of this Agreement, (2) was known to the Receiving Party at the time of its receipt from the Disclosing Party or its Affiliates, (3) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (4) was independently developed by the Receiving Party without use of any Confidential Information.
    b) Each Party receiving Confidential Information under this Agreement (the “Receiving Party”) hereby agrees to hold Confidential Information of the other Party (“Disclosing Party”) in strict confidence and shall, in any case, protect such Confidential Information with no less diligence than that with which it protects its own confidential or proprietary information of a similar nature. The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose unrelated to this Agreement. Company may disclose the Confidential Information of Customer on a “need to know basis” and then only to: (a) its employees and officers; (b) its subcontractors, vendors and other third parties specifically permitted under this Agreement, provided that such parties are subject to written confidentiality agreements; and (c) independent contractors, agents, and consultants hired or engaged by Customer, in accordance with Customer’s written instructions.
    c) If the Receiving Party is legally compelled by any means (including deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose Confidential Information of the Disclosing Party, subject to applicable laws, the Receiving Party must provide the Disclosing Party with prompt written notice of such legal requirement in order to allow the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with this Section.
    d) Upon the termination or expiration of this Agreement, or at any time upon the request of the Disclosing Party, the Receiving Party shall, at the Disclosing Party’s option, return or destroy (and certify as to such destruction) all Confidential Information of the Disclosing Party in its control or possession, other than copies which the Receiving Party may be required to maintain under applicable law or regulation.

     

    20. Force Majeure.

    Except with respect to Customer’s payment obligations, notwithstanding any other provision of the Agreement, a Party shall be excused from any delay or failure in performance of the Agreement to the extent such delay or failure is caused by wildfire, flood, explosion, war, strike, embargo, governmental requirement, civil or military authority, Act of God, or any other causes beyond its reasonable control. Any such delay or failure shall suspend the Agreement until the cause for the delay or failure is removed.

     

    21. Relationship of Parties.

    Neither the Agreement nor the provision of Service hereunder shall be deemed to create any joint venture, partnership or agency between TGN and Customer. The Parties are independent contractors and shall not be deemed to have any other relationship. Neither Party shall have, or hold itself out as having, the power or authority to bind or create liability for the other by its intentional or negligent act.

     

    22.Non-Solicitation.

    Each party agrees that during the term of this Agreement and any extensions thereof, neither it nor any person, firm, corporation or other entity affiliated with, owned in whole or in part by, employed by, or otherwise connected with such party, shall directly or indirectly, without the express prior written consent of the other party, hire or solicit to hire any employee or contractor of the other party.

     

    23. TGN Facilities.

    Equipment furnished by TGN which is identified as “TGN Property” in the applicable CSA (if any) shall remain TGN property and shall be returned to TGN on expiration or termination of the Agreement or as earlier requested by TGN, in good condition, reasonable wear and tear excepted. Customer shall reimburse TGN for any loss of, or damage to, TGN Property on the Customer’s premises, except loss or damage caused by TGN’S own employees, agents or contractors.

     

    24. Commitments.

    TGN has made no commitments or promises orally or in writing with respect to delivery of any future software features or functions. In relation to any future software features or functions, all presentations, RFP responses and/or product roadmap documents, information or discussions, either prior to or following the date herein, are for informational purposes only, and TGN has no obligation to provide any future releases or upgrades or any features, enhancements or functions, unless specifically agreed to in writing by both parties. Customer acknowledges that no purchasing decisions are based upon any future software features or functions.

     

    25. Notices.

    All notices and communications under the Agreement shall be in writing and shall be given by personal delivery, recognized national overnight courier service (i.e. Federal Express), or by U.S. registered or certified mail, return receipt requested to the address set forth below or to such other address as may be designated in writing by such Party. Notice shall be deemed given upon receipt.

     

    26. Entire Agreement.

    This Agreement, including the attached Exhibits, and all CSAs under this Agreement and which are signed by both parties, represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes all other agreements, written or oral, between the Parties relating to the Service. Any modification to this Agreement shall be in writing signed by authorized representatives of both Parties. This Agreement and any amendment of the terms hereof, may be signed in counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument.

     

    27. Waiver.

    No term or provision herein shall be waived, and no breach or default excused, unless such waiver or consent is in writing and signed by the Party to which it is attributed. No consent by a Party to, or waiver of, a breach or default by the other, whether expressed or implied, shall constitute a consent to or waiver of any subsequent breach or default.

     

    28. Injunctive Relief.

    Each Party acknowledges that breach of Sections 18 and 21 would cause irreparable harm and significant injury to the other Party, for which monetary damages alone would not be an adequate remedy. Accordingly, each Party agrees that in the event of a breach or threatened breach of such Sections, the non-breaching Party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for such breach or anticipated breach without the necessity of posting a bond or proving that actual damages have been or will be sustained by it. Any such relief shall be in addition to, and not in lieu of any other remedies available to such Party under this Agreement or otherwise at law or in equity, including but not limited to monetary damages.

     

    29. Partial Invalidity.

    If any provision of the Agreement shall be held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render the Agreement unenforceable, but rather the Agreement shall be construed as if not containing the invalid or unenforceable provision. However, if such provision is an essential element of the Agreement, the Parties shall promptly attempt to negotiate a substitute therefore.

     

    30. Assignment.

    Neither party may assign the Agreement without the written consent of the other party, which consent shall not unreasonably be withheld or delayed; provided that no such consent shall be required for any assignment by a party to an Affiliate or to an entity which succeeds to all or substantially all of such party’s assets, stock or business whether by merger, sale or otherwise.

     

    31. Governing Law.

    The Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of Michigan, without regard to its conflict of laws principles. Each party consents to personal jurisdiction in the state and federal courts of the State of Michigan.

     

    32. Survival.

    The terms of Sections 5, 6, 7, 8, 9, 16, 17 and 18 shall survive termination or expiration of this Agreement.