1. Force Majeure. Neither Party will be in default or otherwise liable for any service outage, other interruption or unavailability of service, delay, or failure of its performance under the Agreement (except with respect to payment obligations hereunder for Services) to the extent such service outage, other interruption or unavailability of service, delay, or failure arises by reason of an act of God or of the public enemy, the elements, adverse weather conditions, fire, flood, riots, strikes, catastrophic accident, war, governmental requirement or any action of government in its sovereign capacity, act of civil or military authority, action or inaction of a supplier or other third party, inability to secure materials, labor or transportation, Denial of Service (“DOS”) attacks, DNS spoofing  and/or any other malicious attempts orchestrated by third parties, or any other cause or circumstance  of a similar nature to the foregoing, beyond the reasonable control and without the fault or negligence of the affected Party (each constituting an “Force Majeure Event”).  Any such Force Majeure Event shall suspend the MSA, the Additional Terms or the Incorporated Agreements, as applicable, until the Force Majeure Event ceases. Notwithstanding the foregoing, with the exception of DOS attacks, DNS spoofing and/or any other malicious attempts orchestrated by third parties and directed towards Customer, Customer shall not be liable for charges for the Services during the duration an event of Force Majeure that directly impacts any Evolve IP-controlled hardware and/or software platforms or any Evolve IP-controlled physical plant and infrastructure facilities that prevents Customer from being able to utilize the Services.

 

  1. Relocation of Services. In the event Customer relocates any Evolve IP-provided equipment, Customer will pay Evolve IP’s then-current rates for Professional Services to facilitate the move. Professional Services include i) provisioning and installation of new Evolve IP-provided equipment, and ii) project management necessary to coordinate the move, and for telephony-related products, updating directory listings and emergency services (i.e. E911) with the applicable changes. Customer will be required to move all Third-Party Equipment and for telephony-related Services, Customer will also be required to move any Evolve IP-provided telephone handsets. If Evolve IP is required to terminate any Dedicated Access at Customer’s old location and install new Dedicated Access into a new location, i) Customer agrees to pay any non-recurring charges assessed to Evolve IP for such reconfiguration, ii) if the Dedicated Access at the old location is under a term, Customer agrees to reimburse Evolve IP for aggregate fees, charges, expenses, and taxes payable by Evolve IP (including, but not limited to, liquidated damages, and disconnection, early cancellation or termination charges payable to third parties) in connection with the termination of the Dedicated Access at the old location, iii) Customer acknowledges that Evolve IP’s costs for Dedicated Access are based on geography, and the cost of the new Dedicated Access may be greater than the cost of the current Dedicated Access, iv) Customer understands that Evolve IP is required to commit to a term on new Dedicated Access, which shall be no shorter than twelve (12) months, and the Service Term for the Services moved to the new location will be extended for a term commensurate with the term of the new Dedicated Access, and v) Customer is liable for the monthly recurring Dedicated Access charges at both locations during any “overlap” period.

 

  1. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, WITH THE EXCEPTION OF THE “TERMINATION” SECTION ABOVE, THE PARTIES AGREE THAT THE TOTAL LIABILITY FOR EITHER PARTY UNDER THIS AGREEMENT IS AS FOLLOWS: (i) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT, OR PUNITIVE DAMAGES WITH RESPECT TO ANY CLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR PROFIT OR ANY OTHER BUSINESS LOSS INCLUDING GOODWILL, LOSS OF USE OF ANY PROPERTY, COST OF SUBSTITUTE PERFORMANCE, EQUIPMENT OR SERVICES, DOWNTIME COSTS AND CLAIMS FOR SUCH DAMAGES, REGARDLESS OF WHETHER DAMAGES ARE CAUSED BY WILLFUL MISCONDUCT, NEGLIGENT ACT OR OMISSION, OR OTHER WRONGFUL ACT ARISING FROM OR RELATED TO THIS AGREEMENT AND REGARDLESS OF WHETHER THE PARTY WAS ADVISED OF OR COULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES; (ii) A PARTY’S ENTIRE LIABILITY FOR ANY CLAIM, LOSS, EXPENSE, OR DAMAGE ARISING UNDER OR RELATING TO THIS AGREEMENT WILL IN NO EVENT EXCEED THE SUM ACTUALLY PAID OR PAYABLE BY CUSTOMER TO EVOLVE IP FOR THE AFFECTED SERVICE TO WHICH THE CLAIM, LOSS, EXPENSE OR DAMAGE RELATES DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE SUCH CLAIM, LOSS, EXPENSE OR DAMAGE FIRST AROSE; (iii) THE FOREGOING LIMITATIONS ARE IN ADDITION TO (AND NOT IN LIEU OF) ANY LIMITATIONS SET FORTH ELSEWHERE IN THIS AGREEMENT, AND THEY APPLY TO ALL CAUSES OF ACTION AND CLAIMS OF ANY KIND BY ANY PERSON OR ENTITY ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE, MISREPRESENTATION, OR ANY OTHER TORT. THE PARTIES ACKNOWLEDGE AND ACCEPT THE REASONABLENESS OF THE FOREGOING LIMITATIONS OF LIABILITY. FOR PURPOSES OF THIS SECTION, ALL REFERENCES TO A PARTY WILL INCLUDE ITS AFFILIATES, AGENTS, SUPPLIERS, OTHER CONTRACTORS, OFFICERS, DIRECTORS, SHAREHOLDERS, AND EMPLOYEES.

 

  1. Evolve IP may assign this Agreement in whole or in part, to any subsidiary, parent, or affiliated company, or to a successor company pursuant to any reorganization or merger of its business, or to any successor pursuant to any sale or transfer of all or substantially all its assets. Any other assignment by either Party without the prior written consent of the other Party (which consent will not be unreasonably withheld) will be null and void and, in the case of an unauthorized assignment by Customer, will otherwise constitute a breach of the Agreement. The rights and obligations under the Agreement will survive any merger or sale of either Party and will be binding upon the successors and permitted assignees of each Party.

 

  1. Governing Law.This Agreement is deemed to be made in the Commonwealth of Pennsylvania and will be governed by the laws of the Commonwealth of Pennsylvania, without regard to choice of law provisions. The Parties further consent to exclusive jurisdiction and venue in the state and federal courts located in Philadelphia, Pennsylvania. Each Party waives all defenses of lack of personal jurisdiction and forum non-conveniens. Process may be served on either Party in the manner authorized by applicable law or court rule.

 

  1. The Parties agree not to use any Confidential Information (as defined herein) of the other Party except to the other Party’s benefit and in performance of its obligations under the Agreement, and not to disclose such information to third parties other than those expressly designated by the other Party. Each Party further agrees to use no less than reasonable care to protect Confidential Information of the other Party. “Confidential Information” includes not only proprietary or confidential information that is marked as such, but also information that should reasonably be expected to be considered confidential or proprietary by the disclosing Party regardless of marking or identification. Confidential Information does not include any information that: (i) is now or becomes available in the public domain through no breach of the Agreement; (ii) can be shown through documented evidence to have been in the possession of the receiving Party as of the date of execution of the Agreement or prior to the date of disclosure by the disclosing Party; (iii) can be shown through documented evidence to have been independently learned by the receiving Party from a third party without breach of the Agreement; (iv) can be shown through documented evidence to have been independently developed by the receiving Party; or (v) is required by law or order of a court, administrative agency or other governmental body to be disclosed by the receiving Party. Confidential Information is and shall remain the sole and exclusive property (or, where applicable, valid license) of the disclosing Party. The Parties acknowledge that unauthorized disclosure or use of any Confidential Information could cause irreparable harm and significant injury to the disclosing Party, the extent and consequences of which may be difficult to assess, and if a Party believes its Confidential Information may be or has been disclosed contrary to the terms of this Section, that Party may seek specific performance, injunctive and/or other equitable relief by a court as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any exercise by the non-breaching Party of its right to equitable relief or specific performance shall not constitute a waiver by the non-breaching Party of any other rights which it may have to monetary damages or other relief. Notwithstanding the requirements and obligations of this Section, Evolve IP shall have the right to issue a press release and/or otherwise publicly disclose that it has entered into an agreement to provide services to Customer.

 

  1. Acceptable Use.

 

(a) Unlawful or Unacceptable Use. While Evolve IP does not exercise editorial control over the content of any Website, electronic mail transmission, or other material created or accessible over or through the Services, Customer may not use, or permit the use of, the Service for unlawful purposes or for purposes that Evolve IP finds unacceptable in its sole discretion. Evolve IP is a provider of an interactive computing service as set forth the Communications Decency Act, 47 U.S.C. §230 and expressly reserves the rights to not be treated as the publisher or speaker of any information provided by another information content provider on the Evolve IP Websites or transmitted through the Services. In order to fulfill this obligation, Customer may not transmit, post, receive, or use the Services to access, in any manner, certain material, which includes but is not limited to the following: threatening, abusive, libelous, defamatory, obscene, pornographic, profane, harmful to minors in any way or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would result in a criminal offense or civil liability, or otherwise violate any local, state, national or international laws or regulations. Moreover, Customer may not (i) transmit any information or software which contains a virus, worm, Trojan Horse, or other harmful component; (ii) transmit any information, software or other material that is protected by copyright or other proprietary right (including trade secret materials), or derivative works thereof, without obtaining permission of the copyright owner or right holder; (iii) transmit any bulk e-mail, whether or not solicited; or (iv) transmit any unsolicited bulk e-mail (also known as “spam”).

 

(b) Control Over Content. Evolve IP provides access to various forms of content that are available over the Internet. Evolve IP does not screen in advance any specific information available over the Internet. Evolve IP reserves the right (but does not assume the responsibility) to block or limit access to general categories of content that Evolve IP deems in its sole discretion to be harmful, offensive, or otherwise in violation of this Section. Evolve IP shall have no liability for any action or inaction with respect to content received over the Internet. It is Customer’s responsibility to control access to information that Customer might find unsuitable. This includes controlling access by minors through Customer’s account. By way the signature of Customer’s authorized representative on the Master Services Agreement, Customer acknowledges receiving this warning and will not hold Evolve IP responsible for language, opinions, discussions or graphics which may be viewed on the Internet. Evolve IP has no obligation to monitor the Internet or any service offered via the Internet, including an Evolve IP Service; however, Customer agrees that Evolve IP has the right to monitor electronically, from time to time, and to disclose any information as Evolve IP in its sole discretion deems necessary to satisfy any law, to operate its Services properly, or to protect itself or customers.

 

(c) Enforceability. If any portion of this Section is held to be unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect. Any failure by Evolve IP to insist upon or enforce strict performance of any provision of this Section will not be construed as a waiver of any provision or right. This Section will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its conflicts of law provisions. Any cause of action Customer may have with respect to the Services must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. CUSTOMER ACKNOWLEDGES THAT THEY HAVE READ THIS ACCEPTABLE USE POLICY, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

 

(d) Miscellaneous. Evolve IP reserves the right to take proactive measures and suspend any service and/or take any other action that it deems necessary, in its reasonable discretion, immediately and without notice, with respect to protecting its customers, network, or the public at large.  This includes, but is not limited to, suspending individual services or blocking traffic from certain network components or users, blocking traffic from a portion of or an entire IP subnet, or disallowing services from or to any location across the globe in an attempt to prevent unauthorized access to the Evolve IP network.