These Terms & Conditions (“Terms”) apply to the use or products or services provided by Shift8 Networks, Inc., dba Synergy Telecom (“Synergy”) to the entity identified in a valid and binding Sales Order Form (“SOF”) and are an integral part of the agreement between Synergy and Reseller. Sometimes Synergy and Reseller may be referred to as the “Parties” or individually as a “Party”. Using the Synergy Services, Reseller provides value added technology products and services to businesses (Reseller’s customers, “Subscribers”), all upon the terms and subject to the conditions set forth herein.
1.SERVICE TERM AND TERMINATION.
1.1. Service Term. Each SOF shall set forth the initial Service Term. If such SOF does not specify a period of time, then the initial Service Term shall be thirty-six (36) months. The Term initiates the day Services are provided. After the initial Service Term, the Term shall automatically renew for twelve (12) month periods unless written notice is given within sixty (60) days of the then applicable expiration date.
1.2 Termination. If a party breaches any provision of this Agreement, the non-breaching party may terminate this Agreement upon written notice if the breaching party fails to cure such breach within 30 days of notice of default from the non-breaching party. If Reseller fails to pay any amount hereunder when due, and such failure is not cured within five (5) days of notice from Synergy. Either Party shall have the right to terminate the Services immediately upon written notice to the other Party in the event of fraud, material misrepresentation, willful misconduct or other international unlawful act with respect to or otherwise affecting the performance of the defaulting party’s obligations. Either party shall have the right to terminate Service in the event that any service or performance related issue is caused by Synergy’s system or operations that affects a Reseller’s Subscriber and is not resolved within thirty (30) days of written notice.
If either party ceases to do business as a going concern, is unable or admits in writing its inability to pay its debts as they become due, commences or authorizes a voluntary case or other proceeding seeking liquidation, reorganization, suspension of payments or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or consents to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or makes a general assignment for the benefit of creditors, or fails to pay a substantial portion of its debts as they become due or takes any corporate action to authorize any of the foregoing or has any substantial part of its property subjected to any levy, seizure, assignment or sale for or by any creditor or governmental agency without such levy, seizure, assignment or sale being released, lifted, reversed, or satisfied within thirty (30) days. In the event of any action or event that leads to pending termination or termination, as stated above, by either party, either party shall provide written notice within ten (10) days of acquiring such knowledge.
1.3 Effect of Termination. Upon expiration of the Term or termination for any reason, all rights and obligations of the parties shall cease except for such rights and obligations that expressly survive termination. Without limiting the foregoing, promptly after the written request of either party, the other party shall return to the requesting party all Confidential Information (as defined below) of the requesting party which is in tangible form and which is then in its possession (or in the possession of any of its officers, directors, employees, equity holders or agents). Without limiting the foregoing, termination of this Agreement shall not affect any orders for the Synergy Services placed by any Reseller Subscriber. Termination shall not prejudice the rights or liabilities of the parties with respect to the Synergy Services or services previously sold or provided, or any amounts then owing by any party to the other party.
2.RIGHTS AND OBLIGATIONS OF RESELLER
2.1. Sales Efforts. Reseller will use commercially reasonable efforts to resell the Synergy Services within the United States to Reseller’s existing and potential customers on a non- exclusive basis. Except as otherwise stated herein, Reseller shall bear all expenses associated with such resell efforts. Reseller may market the Synergy Services by any reasonable and lawful means, including direct marketing, telemarketing, Internet websites, email solicitations, inserts into outgoing bills to Reseller’s customers or other forms of advertising or promotion, subject in each case to any restrictions or obligations imposed by applicable law and regulation, compliance with which will be Reseller’s sole responsibility.
2.2. Telecom Carrier. Reseller represents and warrants that it (i) is a provider of information services to the public for a fee and (ii) purchases Synergy Services only as a component or element of its information services offering and not for resale as a telecommunications service without proper public license to do so.
2.3. Licenses. Reseller is solely responsible for obtaining all licenses, approvals, and regulatory authority for reselling the Synergy Services and the provision of services to Reseller Subscribers, and Reseller will have all required regulatory authorities before providing any services to Reseller Subscribers. When reselling Synergy Services, Reseller is solely responsible for all billing and collections, customer service, collecting and remitting all applicable taxes and fees to the appropriate governmental authority, and other requirements of its Reseller Subscribers. Reseller’s payment obligations to Synergy are not contingent upon Reseller’s ability to collect payments from any third parties, including Reseller Subscribers. Upon request of Synergy, Reseller shall provide a copy of its tax exemption certification. Absent such a certificate, Synergy shall add applicable taxes and fees to Reseller’s monthly invoice.
2.4 Illegal Acts. Reseller shall be liable for any intentional or illegal acts of Reseller or Reseller Subscribers (e.g., slamming) related to the Synergy Services. Reseller will defend and indemnify Synergy, its affiliates, agents, and contractors against any third party claims, costs, judgments or other proceedings, obligations and expenses, including attorney fees, relating to Reseller’s or a Reseller Subscriber’s use, resale or modification of the Synergy Services or Reseller Subscriber’s failure to comply with any regulatory requirements or failure to make any required payments.
2.5 Fraud. Reseller is responsible for selection, implementation and maintenance of security features for protection against unauthorized calling. Synergy will provide certain security features as an ancillary optional service to assist in fraud prevention. If Reseller elects not to utilize Synergy’s security features, then Synergy shall have no liability on the resulting calling. Reseller is solely responsible for payment of long distance, toll and other telecommunications charges, including but not limited to international calling charges, incurred through use of the Synergy Services being provided. Reseller shall indemnify, defend and hold Synergy harmless from all costs, expenses, claims or actions (including reasonable attorney’s fees) arising from fraudulent calls of any nature carried by means of the Synergy Services. Reseller shall not be excused from paying Synergy for Synergy Services provided to Reseller and /or Subscribers or any portion thereof on the basis that any portion of the Synergy Telecom Services related to fraudulent activity. If Synergy discovers fraudulent calls being made, nothing contained herein shall prohibit Synergy from taking immediate action, without notice to Reseller, that is reasonably necessary to prevent such calls from taking place. Notwithstanding the foregoing, Reseller acknowledges and agrees that nothing in this Agreement obligates Synergy to investigate the authenticity of any calls charged to Reseller’s account (or the account of any Subscriber) and shall not be liable for any fraudulent calls processed by Synergy and billed to Reseller’s account (or the account of any Subscriber).
2.6 Improper Use. Synergy’s obligation to provide the Services herein is conditioned upon Reseller not allowing the Synergy Services to be used for any unlawful purpose (including but not limited to “spoofing” of outbound caller-ID, or manipulating originating or terminating numbers), in violation of any governmental regulations or authorizations or in a manner that reasonably could be expected to cause harm to Synergy’s facilities or its ability to provide services to other customers. Synergy shall have the right to limit, terminate or suspend the Services without notice for improper use of the Services by Reseller or any Subscriber or any activity by R e s e l l e r or a Subscriber, as determined in the sole discretion of Synergy, that threatens public health, safety, or welfare, or the integrity or reliability of the Synergy Service, Synergy’s facilities or service to Synergy’s other customers.
2.7 Customer Care/Provisioning. Reseller is responsible for provisioning services on the Synergy platform including but not limited to inventory management of devices, voicemail boxes, recordings, call flow management, DID inventory, building Subscriber groups and/or enterprises, user maintenance (password resets, reassignment of extensions, name changes, etc). Reseller will provide Tier I and II technical support for its Subscribers. Tier I and II includes trouble shooting of Subscriber’s network including, but not limited to, router/device management, network design and management, internet connectivity, and general network issues. Synergy does not provide support for Subscriber’s internal network. For voice issues that persist after Subscriber network efforts have been exhausted, Reseller may escalate the issue to Synergy by opening a trouble ticket and providing necessary details about the trouble being experienced, the efforts taken by Reseller to resolve, and any specific call data required. More specifically, for call quality issues, Reseller will provide data on nature and frequency of issue and call examples detailing originating number, terminating number, date/time/time zone of call. For call flow/call processing issues, Reseller must first confirm that calls are following the path specified by Subscriber taking into account potential changes made by Subscriber before opening a ticket with Synergy and providing similar detailed call examples. For device registration issues, Reseller will first ensure that the device is properly configured both locally, and within the Synergy platform before opening a ticket with Synergy. For issues related to applications other than voice, Reseller will confirm Subscriber is properly provisioned with a valid user name and password and test those credentials internally prior to opening a ticket with Synergy identifying the application, the Subscriber issue, login credentials being used, and Subscriber OS (operating system) being used.
3. RATES AND CHARGES
Synergy will provide Reseller with rates and charges applicable to the Synergy Services (Exhibit A, Exhibit B, and Exhibit C). Reseller acknowledges and agrees to pay Synergy the rates and charges set forth in the Exhibits. Synergy reserves the right to raise or otherwise modify the rates set forth in the Exhibits with no less than sixty (60) calendar days notice.
3.1. The rates set forth in the Rate Sheet, as modified from time to time, are contingent on Reseller maintaining a call duration of greater than six (6) seconds for at least 90% of calls from all Subscribers in each calendar month of the Term. In any calendar month in which more than 10% of Reseller’s Subscribers calls (in the aggregate) are less than or equal to six (6) seconds, Synergy Telecom shall assess a surcharge of $.01 for each call in excess of the 10% maximum.
4. EMERGENCY SERVICES – 911
Reseller acknowledges and understands that Synergy offers a 911 Emergency Serve that is routed to the nearest Public Safety Answering Point (“PSAP”) or local emergency service personnel designated for the physical address Subscriber provides Synergy at the time of activation of Services.
All Subscribers are required to register their physical location of the Service when placing a Sales Order. Subscriber hereby agrees to ensure such address is correct and to update such location if such location changes.
4.1 Failure To Designate The Correct Physical Street Address.
If Reseller and Subscriber do not correctly identify the actual current and correct physical street address location where the Synergy Service will be located at the time Subscriber registers for the Synergy Service, 911 communications may be misdirected to an incorrect local emergency service provider. When activating the Service, Subscriber must provide the actual physical street address where the Services will be provided, not a post office box, mail drop or similar address. Reseller acknowledges and understands, and shall inform Subscriber, that 911 dialing does not function properly or at all if you move or otherwise change the physical location of your Synergy Services to a different street address. Any change of the Subscriber’s physical address must be coordinated with Synergy for the service and 911 to work properly.
4.2 Limitation of Liability and Indemnification. RESELLER RELEASES, AND SHALL CAUSE EACH SUBSCRIBER TO RELEASE, ANY CLAIM IT MIGHT OTHERWISE HA VE AGAINST SYNERGY AND EACH OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OF ITS UNDERLYING PROVIDERS, SERVICE PROVIDERS OR OTHER THIRD PARTY PROVIDERS WHO FURNISH SERVICES TO RESELLER, SUBSCRIBER OR SYNERGY IN CONNECTION WITH THIS AGREEMENT OR THE SYNERGY SERVICE (COLLECTIVELY, “RELEASEES”), ARISING OUT OF THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, INCLUDING 911 DIALING AND/OR INABILITY OF RESELLER OR ANY THIRD PERSON OR PARTY OR USER OF THE SERVICE TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL AND/OR MISROUTES OF 911 CALLS, INCLUDING BUT NOT LIMITED TO MISROUTES RESULTING FROM SUBSCRIBER OR RESELLER PROVIDING SYNERGY INCORRECT ADDRESS INFORMATION IN CONNECTION THEREWITH (COLLECTIVELY, A “911 ISSUE”). RESELLER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS EACH SYNERGY RELEASEE FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS FEES, COLLECTIVELY, A “911 LOSS”) BY, OR ON BEHALF OF, WHOLESALER, SUBSCRIBER OR ANY THIRD PERSON OR PARTY OR USER OF THE SYNERGY SERVICE RELATING TO A 911 ISSUE.
RESELLER COVENANTS, AND SHALL CAUSE SUBSCRIBER TO COVENANT, NOT TO ASSERT ANY CLAIM RELATED TO A 911 LOSS AGAINST ANY RELEASEE.
5. RIGHTS AND OBLIGATIONS OF SYNERGY
5.1 Synergy Services. Synergy will provide to Subscribers Services in accordance with the Rate Sheet (Exhibit A). The fees on the Rate Schedule are exclusive of applicable taxes and surcharges (including without limitation any specific surcharge that may be imposed by regulatory agencies or may be imposed by Synergy), which will be billed by Synergy as applicable in addition to the fees.
5.2 Marketing. In order to facilitate the marketing and promotion of the Synergy Services by Re s e l l e r , Synergy shall provide Reseller and its employees with training regarding the potential and proper uses of the Synergy Services.
5.3 Subscriber Relationships. With respect to the Synergy Services, Synergy shall not be in privity of contract with any Subscriber. Unless otherwise agreed to in writing by the parties, Synergy shall not provide Subscribers with any service or support, or customer care, including but not limited to receiving or responding to trouble reports, service inquiries, billing inquiries, questions, disputes, change orders, or orders for additional Synergy Services.
5.4.1 Synergy shall not be responsible for billing and remittance processing activities relating to the sale of Synergy Services to Subscribers. Synergy will not be responsible for billing and collecting delinquent payments for services included in or provided through the Synergy Services, including without limitation, information/directory assistance or international calling. Reseller acknowledges that Synergy may terminate the Synergy Services to any Reseller that is delinquent in paying one or more bills thirty (30) or more days late. UPON NON-PAYMENT OF SERVICES: SYNERGY MAY SUSPEND ALL OF RESELLER’S AND SUBSCRIBER’S SERVICES UNTIL SUCH PAYMENT IS RECEIVED. IF PAYMENT IS NOT RECEIVED BY THE THIRD DAY AFTER SUSPENSION, SYNERGY MAY CONTACT ALL OF RESELLER’S SUBSCRIBERS TO MIGRATE THEM TO SYNERGY’S OWN NETWORK AND ACCOUNTING SERVICES AND HAVE THE SUBSCRIBER BECOME A DIRECT CUSTOMER OF SYNERGY.
5.4.2 All Reseller purchases are final and no returns will be accepted by Synergy for Licensed Applications, Seats, Trunks or associated features ordered a la carte by Reseller. Reseller has the right to re-sell Licensed Applications, Seats, Trunks and associated features ordered a la carte by Reseller.
5.5 Customer Service. Without limiting the foregoing, Synergy shall, at its sole cost and expense, maintain a web based support ticketing system for Reseller, as well as one or more toll-free numbers, staffed with such level of customer service representatives as in Synergy’s judgment is reasonably necessary to promptly service Reseller calls related to the Synergy network. Synergy shall forward all inquiries relating to Reseller services other than the Synergy Services to Reseller customer service center or other customer service methods designated from time to time by Reseller.
5.6 Reporting. Synergy shall provide at the request of Reseller a report dated as of the last day of the previous month containing such information as Reseller may reasonably request (to the extent Synergy possesses it) with respect to the relationship between Synergy and all Subscribers using Synergy Services.
5.7 Compliance with Laws; Governmental Permits. Reseller and Synergy shall conduct its business and perform its obligations hereunder and to Subscribers in a manner that complies with all applicable Laws and with the requirements of all Governmental Permits. Without limiting the foregoing, if the FCC, a state PUC or a court of competent jurisdiction issues a rule, regulation, law or order which has the effect of canceling, changing, or superseding any material term or provision of this Agreement (any of the foregoing, a “Regulatory Requirement”), then upon written notice Synergy may terminate without liability that portion of this Agreement impacted by the Regulatory Requirement.
6. RESELLER COMPENSATION AND COMMITMENT
6.1 Subscriber Commitment. Reseller shall ramp up to minimum of Two Hundred (200) Subscribers Seats (sip, standard or enhanced plans or combination thereof) on or prior to the first anniversary of the Effective Date (the “Anniversary Date”). “Subscriber Seats” means hosted and/or SIP trunking. If Reseller fails to have at least 200 Subscribers Seats on or before the Anniversary Date, then Reseller shall pay Synergy a fee equal to (A) 200 minus the number of Subscribers Seats on the Anniversary Date, times (B) $12.00. Such payments shall commence immediately, and be due on the 1st day after the Anniversary Date.
6.2 Fees. For each new Subscriber Seat, Reseller shall pay Synergy the applicable License Fee and the MRC (each as set forth on the Rate Sheet then in effect) for the first month of Synergy Service. Such payment shall be due on the first (1st) calendar day following activation. All fees will be pro-rated for the month in which they are installed. Thereafter, Synergy shall invoice Reseller for each Subscriber Seat in accordance with the Rate Sheet then in effect. All payments are due on the fifteenth (15th) calendar day after the invoice date.
7. TRADEMARK RIGHTS
7.1. Reseller shall market the Synergy Services under Reseller’s brand name separately or in combination with other services or products offered by Reseller (which other services or products will be marketed under Reseller’s brand name). All marketing materials produced by Reseller with regard to the Synergy Services shall comply with applicable laws and are subject to Synergy’s prior approval before use. Notwithstanding the foregoing, except as may be required by Law, Reseller shall make no use of any Synergy logos, trademarks, trade names or service marks (collectively, “Marks”) without Synergy’s express written consent. Synergy may at any time and in its sole discretion, withdraw its consent to the use of any of its Marks upon notice to Reseller.
8. REPRESENTATIONS AND WARRANTIES
Each party hereby represents and warrants as follows:
8.1 It has validly acquired and holds in full force and effect all material Governmental Permits and licenses required by applicable law to carry on its business as now being conducted and as contemplated hereby, and to enter into and perform its obligations. It has not received any notice from any governmental agency that it intends to cancel, revoke, terminate, suspend or not renew any such Governmental Permit and it does not have any knowledge of any basis for any of the foregoing. It is in compliance with all such Governmental Permits in all material respects. “Governmental Permits” include any permit, license, franchise, certificate, authorization, approval or consent obtained from or issued by any governmental, quasi- governmental, judicial, public or statutory instrumentality, authority, agency, bureau, body or entity of the United States of America or of any state, county, municipality or other political subdivision located therein.
8.2 (i) It has the right, power and authority to enter into and perform its obligations; (ii) it has taken all requisite corporate action to approve execution, delivery and performance, and this document constitutes its legal, valid and binding obligation; and (iii) the performance of its obligations hereunder will not constitute a material violation of any existing applicable law, rule, regulation or order of any governmental authority, or contract to which it is subject.
9.1 Amendments. This Document may be amended only by a writing signed by each of the parties, and any such amendment will be effective only to the extent specifically set forth in such writing.
9.2 Arbitration/Governing Law. All claims shall be resolved by arbitration in accordance with the then current rules if the American Arbitration Association by a single arbitrator. The arbitrator shall not be authorized to award punitive damages. The arbitration will be held in Bexar County, Texas. These Terms shall be governed and construed in accordance with the laws of the State of Texas, without giving effect to conflict of law principals.
9.3 Confidentiality; Press Releases.
a. As used in this d o c u m e n t , the “Confidential Information” of a party means all information concerning or related to the business, operations, financial condition or prospects of such party or any of its Affiliates, regardless of the form in which such information appears and whether or not such information has been reduced to a tangible form, and specifically includes (i) all information regarding the customers, suppliers, distributors, sales representatives and licensees of such party and its Affiliates, in each case whether present or prospective, (ii) all inventions, discoveries, trade secrets, processes, techniques, methods, formulae, ideas and know- how of such party and its Affiliates, (iii) all financial statements, audit reports, budgets and business plans or forecasts of such party and its Affiliates and (iv) this document and the transactions contemplated hereby (which shall be deemed the Confidential Information of both parties); provided, that the Confidential Information of a party does not include (A) information which is or becomes generally known to the public through no act or omission of the other party and (B) information which has been or hereafter is lawfully obtained by the other party from a source other than the party to whom such Confidential Information belongs (or any of its Affiliates or their respective officers, directors, employees, equity holders or agents) so long as, in the case of information obtained from a third party, such third party was or is not, directly or indirectly, subject to an obligation of confidentiality owed to the party to whom such Confidential Information belongs or any of its Affiliates at the time such Confidential Information was or is disclosed to the other party. As used in this document, an “Affiliate” of a party means any person or entity who controls, is controlled by or is under common control with such party, and “control” means the ability to direct the management or policies of an entity, whether through the ownership of securities, by contract or otherwise.
b. Except as otherwise permitted by subsection (c) below, each party agrees that it will not, without the prior written consent of the other party, disclose or use for its own benefit any Confidential Information of the other party.
c. Notwithstanding subsection (b) above, each of the parties is permitted to:
(i) disclose Confidential Information of the other party to its officers, directors, employees, equity holders, lenders, agents, counsel, auditors, bona fide prospective acquirers or merger partners, and Affiliates, but only to the extent reasonably necessary in order for such party to perform its obligations and exercise its rights and remedies under this Agreement, and such party will take all such action as is necessary or desirable in order to ensure that each of such Persons maintains the confidentiality of any Confidential Information that is so disclosed;
(ii) make additional disclosures of or use for its own benefit Confidential Information of the other party, but only if and to the extent that such disclosures or use are specifically contemplated; and
(iii) disclose Confidential Information of the other party to the extent, but only to the extent, required by applicable law; provided, that prior to making any such disclosure, the party required to make such disclosure will notify the other party of the same, and the other party will have the right (to the extent permitted by law) to participate with the disclosing party in determining the amount and type of Confidential Information of the other party, if any, which must be disclosed in order to comply with applicable law.
During the Term, neither party shall issue any press release with respect to these transactions contemplated hereby without the prior written consent of the other party.
9.4 Entire Terms & Conditions. These Terms contain the entire agreement of the parties with respect to the transactions contemplated hereby and supersedes all prior written and oral agreements, and all contemporaneous oral agreements, relating to such transactions.
9.5 Equitable Relief. The parties acknowledge and agree that each would be irreparably damaged in the event that any of the provisions affecting Confidential Information or the use of Marks are not performed by the other in accordance with their specific terms or are otherwise breached. Accordingly, it is agreed that each party is entitled to an injunction or injunctions to prevent breaches of such provisions by the other and will have the right to specifically enforce such provisions against the other in addition to any other remedy to which such aggrieved party may be entitled at law or in equity.
9.6 Exclusivity. Nothing shall be construed to prevent either party from selling or marketing its services through any and all channels of its choice, or to prevent Reseller from utilizing, offering or otherwise making available services that are competitive with or complementary to any aspect of the Synergy Services, including otherIP-basedtelephonyservices. Without limiting the foregoing, each party acknowledges and understands that it remains at all times solely responsible for the success and profits of its business, and that the other party makes no promises, warranties or representations regarding business success or prospects of business success in connection with the provision of the Synergy Services being sold and marketed. Each party acknowledges and understands that nothing diminishes or restricts in any way the rights of the other party to engage in competition for customers or to market its services to competitors of the first party.
9.7 Force Majeure.
a. No party is liable for any failure to perform its obligations (other than obligations to make payments of money) if such performance has been delayed, interfered with or prevented by an event of Force Majeure.
b. As used in this Section, “Force Majeure” means any circumstances whatsoever which are not within the reasonable control of the party affected thereby, including without limitation an act of God, war, insurrection, riot, strike or labor dispute, shortage of materials, fire, explosion, flood, earthquake, government requisition or allocation, breakdown of or damage to plant, equipment or facilities, interruption or delay in transportation, fuel supplies or electrical power, embargo, boycott, order or act of civil or military authority, legislation, regulation or administrative rules, or any inability to obtain or maintain any governmental permit or approval. The party who declares Force Majeure will give prompt notice to the other party of such declaration.
c. If the performance of any obligation has been delayed, interfered with or prevented by an event of Force Majeure, the party affected by such event will take such actions as are reasonably available to remove the event of Force Majeure or to mitigate the effect of such occurrence.
d. If an event of Force Majeure occurs, the obligations of the parties (other than obligations to make payments of money) will be suspended during, but not longer than, the continuance of the event of Force Majeure.
e. Further Assurances. The parties will from time to time do and perform such additional acts and execute and deliver such additional documents and instruments as may be required by applicable law or reasonably requested by any party to establish, maintain or protect its rights and remedies or to affect the intents and purposes of these Terms.
9.8.1 Reseller shall indemnify, defend and hold harmless Synergy and its Affiliates, equity holders, officers, directors, shareholders, employees and agents (collectively, “Indemnitees”) from and against any all losses, liabilities, damages or deficiencies (including interest, penalties and reasonable attorneys’ fees) (“Losses”) arising out of or due to (i) any failure of any representation or warranty made by Reseller hereunder to be true and correct if any material respect, (ii) any failure of Reseller to perform or observe its covenants and agreements hereunder, (iii) any violation of or failure to comply with applicable Laws by Reseller, (iv) the fact that Synergy does not provide 911 emergency service in the same manner as traditional telecommunications carriers, (v) any suits, claims, actions or proceedings incident to or arising out of the foregoing and any suits, claims, actions or proceedings incident to or arising out of the foregoing, and (vi) any suits, claims, actions or proceedings asserted by Subscribers against Synergy and/or any of its Affiliates, equity holders, officers, directors, shareholders, employees and agents.
9.8.2 All amounts payable in respect of Reseller’s obligations under this Section shall be due and payable (i) on the date specified in any invoice which Reseller receives from a third party, if payable to a third party, or (ii) within five business days after an Indemnitee’s demand therefore, if payable to such Indemnitee.
9.8.3 The obligations of Reseller under this Section shall survive any termination of the Term.
9.9 Independent Contractor. Each party is an independent contractor in perming the services described and the relationship of the parties shall in no way be deemed to be that of principal and agent, employer and employee, franchiser and franchisee, partners or joint ventures. Except as otherwise expressly provided, no party (nor any of its officers, directors, agents or employees) shall act or hold itself out as an agent of the other party hereto. The parties do not intend or the relationship hereunder to constitute a joint venture or partnership. Reseller will not indicate or imply to any other party that Reseller is affiliated with Synergy or that Reseller is providing (or will provide) service to such party jointly or in collaboration or partnership with Synergy.
9.10 Severability. Any provision which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
9.11 Successors and Assigns. This document is binding upon, and will inure to the benefit of, each of the parties and their respective successors and permitted assigns.
9.12 Survival; Duration. The rights and obligations of either party that by their nature would continue beyond the termination or expiration shall survive termination or expiration. For example, the provisions regarding Confidentiality and use of Marks shall remain in effect following termination and the provisions regarding arbitration, indemnification, and/or limitation of liability shall survive termination as to any cause of action arising.
9.13 Third Party Beneficiaries. This Document is made solely for the benefit of the parties hereto and their successors and permitted assigns, and no other person or entity (including without limitation Subscribers) has, or is entitled to enforce, any rights, benefits or obligations.
9.14 Waiver of Jury Trial. The parties waive the right to a trial by jury in any action or proceeding arising out of or relating or the subject matter hereof and brought by any other party. Each party acknowledges that this is a commercial transaction, that the foregoing provision for waiver of jury trial has been read, understood and voluntarily agreed to by such party and that by agreeing to such provision such party is waiving important legal rights.
9.15 Waivers. The due performance or observance by the parties of their respective obligations will not be waived, and the rights and remedies of the parties hereunder will not be affected, by any course of dealing or performance or by any delay or failure of any party in exercising any such right or remedy. The due performance or observance by a party of any of its obligations may be waived only by a writing signed by the party against whom enforcement of such waiver is sought, and any such waiver will be effective only to the extent specifically set forth in such writing. Without limiting the foregoing, the failure of a party to enforce any right at any particular point in time shall not constitute a continuing waiver of any such right with respect to the remaining term, or the waiver of any other right.
9.16 No Other Representations or Warranties. Except as expressly provided, Synergy makes no representations or warranties, express or implied, and specifically disclaims any warranty of merchantability, fitness for a particular purpose, title or non- infringement or any warranty arising by usage of trade, course of dealing or course of performance. Synergy does not represent or warrant that the services will be uninterrupted or error-free, or that the services will meet Reseller’s or
Subscribers’ requirements or that the services will prevent unauthorized access by third parties. Synergy does not authorize anyone to make a representation or warranty of any kind on its behalf and Reseller should not rely on anyone making such statements.
9.17 Limitation of Liability. Except to the extent provided with respect to indemnification, neither party shall be liable to the other party for any indirect, incidental, consequential, punitive, exemplary, reliance or special damages, including without limitation damages for lost profits, advantage, savings or revenues of any kind, or increased cost of operations, whether or not such party has been advised of the possibility of such damages. In no event shall Synergy be liable for any claim or damages caused by or arising out of : (I) any act or omission (including without limitation unauthorized use, theft, alteration, loss or destruction of service or the applications, content, data, programs, information, network or systems of Reseller, any Reseller affiliate, any Subscriber or any third party) of Reseller, any Reseller affiliate, or any Subscriber, (II) except as otherwise provided in an attachment, service levels, delays or interruptions or lost or altered messages or transmissions, or (III) interoperability, interaction or inter- connection of the services with applications, equipment, services, content or networks provided by Reseller or third parties. Synergy’s liability shall be limited to proven direct damages not to exceed per claim (or in the aggregate during any 12-month period) an amount equal to the total payments received by Synergy, net of payments made by Synergy to Reseller, for the applicable service during the 3 months preceding the month in which the damage occurred.