Master Service Agreement

MASTER SERVICE AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING ANY OF OUR SERVICES, YOU ACCEPT THE TERMS OF THIS AGREEMENT AND IT BECOMES A LEGALLY BINDING COMMITMENT BETWEEN YOU AND US.

IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICES.

This Agreement was last updated on March 25, 2020. It is effective between you and us as of the earlier of the date of You accept this Agreement or use the Services (the “Effective Date”).

1. Definitions.

All capitalized terms used in this Agreement have the meaning set forth in this Agreement or as otherwise defined below:

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity.

“End User” means an individual who is authorized by you to use a Service ordered or provisioned by you from us, with or without charge. End User may include, for example, your employees, consultants, clients, contractors, agents, and third parties with which you transact business but who have access to our Service.

“Governmental Authority” means any federal, state, local, foreign or supranational government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.

“Intellectual Property” means any and all trade secrets, trademarks, patents, domain names, original works of authorship and related copyrights, and any other intangible property in which any person holds proprietary rights, title, interests or protections, however arising, pursuant to the Laws of the US, including all applications, registrations, renewals, issues, reissues, extensions, divisions and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing.

“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order, other requirement or rule of law of any Governmental Authority.

“Representatives” means a Party’s Affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors and permitted assigns.

“Services” means the SMS platform services that are ordered and used by you, either electronically when registering your account or if provided to you under a free trial or as a Beta Service.

“Tariff” means an open contract between a telecommunications carrier and the FCC. Tariffs contain the rates, terms and conditions of certain services provided by the telecommunications carriers.

“We”, “us” or “our” means Commify US Ltd.

“You” or “your” means the person or company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which has access to the Service.

2. Free Trial.

If you register on our website for a free trial, we will make the Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the Service; (b) if the trial period includes a limitation on the use of the Service (for example, a maximum number of messages) than when you reach that limitation; (d) the start date of any purchased Service subscriptions ordered by you; or (e) termination by us in accordance with this Agreement. Additional trial terms and conditions may appear on the trial registration webpage and are incorporated into this Agreement by reference. We may require that you provide to us credit card information in order to enroll in the free trial. We will not bill you for the free trial.

Data that you enter into the Service, or any modifications made to the Service for you during your free trial will be permanently lost unless you purchase the same Service or you export your data before the end of the trial period.

Notwithstanding any other provision of this Agreement to the contrary, the Service provided during the free trial period is provided “AS IS” and without any warranty.

3. Beta Service.

From time to time, we may make available beta services at no charge. You may choose to use the beta service in your own discretion. Beta Service are not intended for production use, are not supported, are provided on an “AS IS” basis and without any warranty. Additional terms and limitations may be applicable to the beta service. We may modify, suspend or discontinue the beta service at any time and in our sole discretion. You agree that we will have no liability for any harm or damage arising out of or in connection with your use of the beta service.

4. Accounts and Rates.

(a) Accounts. Before you can use our Service, you must first create an account and provide to us basic information, such as your full name, telephone number, email address, and password. All information provided must be accurate, complete and current. You are solely responsible for all use of the Service under your account. You are also solely responsible for all access to and use of your account, and for all acts and omissions of any person that has access to it. Keep your password confidential.

(b) Rates. You agree to pay all fees and charges associated with your account. Our standard rates may change and unless we have agreed to specific rates, your continued use of the Services will constitute acceptance of the changed rates. We will use commercially reasonable efforts to notify you of any change in rates and fees.

(d) Pass Through and Maintenance Fees. You agree to pay any other fees imposed by us, a third-party carrier or other service provider, whether charged to or against us, including, without limitation, leasing charges, maintenance fees or message termination charges associated with your use of the Service (the “Pass Through Fees”). The Pass Through Fees are subject to change and may include interest, collection fees or exchange rate differentials, if applicable. We will use commercially reasonable efforts to notify you of any applicable Pass Through Fees prior to your use of the Service.

5. Payment.

(a) Payments. Payments for the Service are made monthly in advance and your access to and use of the Service is contingent upon your paying for such use. We will impose a late payment charge of the lesser of 1.5% per month, or the highest legally permissible rate for any payment(s) that are not received. You agree to reimburse us for all costs incurred in collecting any late or dishonored payments, including, without limitation, attorneys’ fees.

(b) Service Credits Carryover. If your plan includes a monthly number of messages, the messages may be carried over month to month provided your account is in good standing and all payments for the Service have been received by us. All unused messages will expire at the end of the Term or when you cancel your account.

(c) Payment Methods. We require that you provide to us a valid and updated payment card information. If you provide payment card information to us, you authorize us to charge such payment card for the Service. Such charges may be made in advance, as the Services are used, or in accordance with any different billing frequency as we have accepted. If the charges exceed your available daily credit limit, you authorize us to charge your payment card until such time as the charges are paid in full.

(d) Taxes. All expenses payable by you under this Agreement are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on such amounts. You will be responsible for all such charges, costs and taxes, except for taxes imposed on, or with respect to our income, revenues, gross receipts, property or other assets.

(e) Credit Checks or Deposits. We may require that you provide to us credit information or a security deposit as a condition of our acceptance of your use of the Service. You authorize us to verify the information you provide and to run a credit check, if applicable. We reserve the right, at any time, to require a security deposit to continue to provide the Service if we determine, in our sole discretion, that (i) your usage of the Service does not meet the expected level previously agreed to; (ii) you miss a payment or otherwise become delinquent or are in breach of this Agreement; (iii) your level of credit with us is insufficient.

6. Your Obligations.

(a) Credentials. We will assign to you a confidential identification, log-in and password (and ability to change the password) so that you may access the Service (collectively, the “Credentials”). You agree to not disclose your Credentials to any third-party and only to disclose the Credentials to your Representatives who will access or use the Services on your behalf. You agree to use reasonable efforts to prevent unauthorized access to or use of the Services and notify us promptly of any such unauthorized access or use.

(b) Acceptable Use Policy. Your use of the Service must comply with our Acceptable Use Policy, which prohibits the use of the Service in any prohibited manner, including, but not limited to using the Service:

We reserve the right, in our sole discretion, to cooperate with legal authorities or third-parties in investigation of any suspected or alleged civil or criminal wrong due to or arising as a result of the violation of this Agreement or the Acceptable Use Policy. Disclosure of information to a legal or third-party made pursuant to this Section 6(b) will not be considered a violation of any provision of Section 11 (Confidentiality). In addition to any remedies or rights we may have, we reserve the right, in our sole discretion, to determine if your use of the Service is being used for any of the foregoing purposes or activities and to immediately suspend or terminate your account and cease processing all Service.

(c) Equipment. You are solely responsible for the installations, configuration, security (including, without limitation, any firewall security policies whether configured or implemented by you or by a third-party on your behalf), and the integrity of all your facilities, systems, equipment, servers, software, networks, network configuration and the like (collectively, the “Equipment”) used with or related to the Service, including, without any limitation, your customers use of the Service. You are solely liable for your Equipment and agree to maintain all Equipment necessary to establish a connection to the Service, including installing, configuring or maintaining software required to access the Service.

(d) End-User Compliance. As part of providing the Service we may, from time to time, receive domain names, your customer’s names, End User names, addresses, passwords, telephone and device numbers, message content, data files and other data and information provided by you or received by us in your use of the Service (collectively “User Information”). Except as required to provide the Service, we do not exercise any control over User Information, including, without limitation, the content of messages that may be transmitted or generated using the Service. We undertake no responsibility to review the content of any messages to determine whether such User Information may violate any Law, or create any liability on behalf of, or on the part of any third-party. You will be responsible for (i) your compliance with this Agreement; (ii) the accuracy, quality and legality of your data, including User Information; (iii) ensuring your use of the Service complies with all applicable Laws, including, without limitation, laws and regulations governing the invasion of privacy, libel or slander.

7. Term and Termination.

(a) Termination. We may terminate your access to the Service, in addition to any other rights we may have pursuant to this Agreement, if we determine, in our sole discretion, that your use, or End User’s use of the Service materially and adversely interferes with, or places in our network, other customers, partners or other providers in jeopardy. We will use commercially reasonable efforts to provide to you prior notification as is practicable under the circumstances.

(b) Effect of Termination, Cancelation or Suspension. Upon any termination, cancelation or suspension, you are still obligated to pay for any use of the Service that have accrued, and if you are on a yearly plan, for the remainder of the Term. Should such a termination, cancelation or suspension occur while you still have credits available in your account, we will not issue you a refund of any unused credits. We also reserve the right, without limiting any other rights or remedies we may have, to accelerate all amounts that are due to us and demand immediate payment via wire or other instructions we may provide to you, or to discontinue or suspend the Service without notice and without any liability to you if either you fail to make payments, fail to replenish any pre-paid account balances, or are in breach of this Agreement. You agree to pay such invoices immediately upon receipt.

8. Reservation of Rights.

Subject to the limited rights expressly granted in this Agreement we and our licensors reserve all our or their right, title, interest in and to the Service, including all associated Intellectual Property rights. No rights are granted to you under this Agreement other than as expressly set forth herein.

9. Limitation of Liability and Remedies.

(a) Limitation of Liability. EXCEPT FOR LIABILITY ARISING FROM (I) A PARTY’S BREACH OF ITS OBLIGATIONS PURSUANT TO SECTION 11 (CONFIDENTIALITY); (II) A BREACH OF SECTION 6 (YOUR OBLIGATIONS); OR (III) WITH RESPECT TO ANY INDEMNIFICATION, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL WE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF WE HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT AS DESCRIBED IN THIS SECTION 9, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL WE BE LIABLE TO YOU FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.

THE PROVISIONS OF THIS SECTION 9 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

(b) Third-Party Factors and Span of Control. Our provision of the Service is dependent on the facilities, networks and connectivity of third-party internet, wireless and wireline service providers (the “Carriers”) and third-party aggregators (collectively, including the Carriers, “Third-Party Factors”). Third-Party Factors are deemed to be outside of our Span of Control. Our “Span of Control” is defined as those areas of functionality and technology used in the provision of the Service that are under our direct control (excluding Third-Party Factors). You acknowledge that the performance of the Service may be impacted or affected by the Third-Party Factors and as such, we will have no liability for any reduction, interruption, termination or suspension of the Service related to any Third-Party Factors.

10. Limited Warranty.

We warrant that during the Term (a) this Agreement will accurately describe the applicable administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of your data; (b) we will not materially decrease the overall security of the Service; and (c) the Service will perform materially in accordance with this Agreement.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TRIAL AND BETA SERVICES ARE PROVIDED “AS IS” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY FACTORS.

11. Confidentiality.

From time to time during the Term, either party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”).

Confidential Information does not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 11 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third-party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed to provide the Services or pursuant to applicable Law.

The Receiving Party shall, for one (1) year from receipt of such Confidential Information: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 11 caused by any of its Representatives.

12. Arbitration.

(a) Agreement to Arbitrate. We both agree to arbitrate any dispute arising under this Agreement (including any applicable privacy policies) or any dispute relating to our Services in Norfolk, Virginia. This agreement to arbitrate applies to all claims under any legal theory, including any claim that requires the interpretation of this Agreement or if this Agreement applies. Our agreement to arbitrate continues to apply after you have stopped using the Service. If you bring a claim in court against us that should be arbitrated, or if you refuse to arbitrate a claim, we reserve the right to ask a court to halt or compel arbitration. We also reserve the right to seek, outside of arbitration, any injunctive relief in any court having jurisdiction over either party to enjoin or prevent any action you take or threaten to take in violation of this Agreement.

(b) Arbitration Procedure. The Commercial Arbitration Rules of the American Arbitration Association then in effect shall apply to the arbitration, except if they conflict with any express provision of this Section 12. Claims shall be heard by a single arbitrator. The place of arbitration shall be Norfolk, Virginia. The arbitration shall be governed by the laws of the State of Virginia. Each party will, upon written request of the other party, promptly provide the other with copies of all relevant non-privileged documents. All such discovery shall be in accordance with procedures approved by the arbitrator. Unless otherwise provided in the award, each party shall bear its own costs of discovery. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. The arbitrator may not change, modify, or alter any express condition, term or provision of this Agreement. The prevailing party shall be entitled to an award of reasonable attorney fees. Except as provided for in the Federal Arbitration Act, the arbitration award will be final and binding upon the parties, and no appeal of any kind may be taken. Judgment may be entered thereon in any court having jurisdiction thereof. The statute of limitations applicable under Virginia law to the commencement of a lawsuit shall apply to the commencement of arbitration hereunder.

(c) Class Action Waiver. Both you (and any End User) and us agree that any claims or controversies between us must be brought against each other only on an individual basis. Neither you (or your End Users) nor us can bring a claim as a plaintiff or class member in a class action, consolidated action or representative action. The arbitrator cannot combine more than one person or entity’s claims into a single case and cannot preside over any class, consolidated or representative proceeding unless we agree otherwise. Moreover, the arbitrator’s decision or award in one person or entity’s case can only impact the person or entity that brought the claim, not any other customer or used to decide disputes with other customers. If a court decides that this Subsection 12(c) is not enforceable or invalid, then the entire Section 12 will be null and void but the remainder of this Agreement will still apply.

13. Mutual Indemnity.

(a) Indemnification by Us. We will defend you against any suit or proceeding brought against you by a third-party alleging that Service infringes or misappropriates such third-party’s Intellectual Property rights (the “Claim”) and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a settlement approved by us in writing of a Claim, provided you (a) promptly give us reasonable notice of the Claim; (b) give us sole control of the defense and settlement of the Claim, except that we may not settle any Claim against you unless it releases you of liability; and (c) give us all reasonable assistance, at our sole expense. If we receive information about an infringement or misappropriation claim related to the Service, we may in our sole discretion and at no cost to you (i) modify the Service so that it is no longer claimed to infringe or misappropriate; (ii) obtain a license for your continued to use of the Service in accordance with this Agreement; or (iii) terminate the Service upon thirty (30) days’ written notice to you. The above indemnification obligations do not apply to the extent a Claim arises from (i) use of the Service in combination with other products, services, methods, techniques, software or data not supplied or expressly approved by us; (ii) modifications or additions to the Service made or provided by you; (iii) the resale, sublicense or other provision of the Service, alone or in combination with other products or services by you to third-parties or End Users; (iv) Your End User’s use of the Service; (v) Our compliance with your specifications or requirements for the Service which result in the Claim; or (vi) Intellectual Property rights owned by or licensed to, in whole or part, you or your Affiliates.

(b) Indemnification by You. You will defend us against any claim, demand, suit or proceeding (i) made or brought against us by a third-party alleging that your data or our compliance with your specifications or requirements for the Service infringes or misappropriates such third-party’s Intellectual Property rights; (ii) you or your End-User’s use of the Service, including any use of the Service in violation of this Agreement; or (iv) the use of the Service in violation of any Law by you, the End-User or your Affiliates. You will indemnify us for from any and all damages, attorney fees and costs awarded against us as a result of, or for any amounts paid by us under a settlement approved by you in writing of the Claim, except that you may not settle any Claim against us unless it releases us of liability.

14. General Provisions.

(a) Further Assurances. Upon a party’s reasonable request, the other party shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.

(b) Entire Agreement. This Agreement constitutes the sole and entire agreement between you and us with respect to your use of the Service, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

(c) Survival. Subject to the limitations and other provisions of this Agreement, (a) Section 4 (Accounts and Rates), Section 5 (Payment), Section 6 (Your Obligations), Section 7 (Term and Termination), Section 9 (Limitation of Liability and Remedies), Section 11 (Confidentiality), Section 12 (Arbitration) Section 13 (Indemnification), and Section 14 (General Provisions), of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement for the period specified therein.

(d) Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the address you provided to us when you registered for the Service (or to such other address that may be designated by the receiving party from time to time in accordance with this section). Unless otherwise provided for in this Agreement, notice will be deemed to be delivered when sent via one or any combination of the following (i) email address(es) of record, (ii) via facsimile number of record, (iii) overnight delivery to the physical address of record by a nationally recognized overnight delivery service, (iv) or certified or registered mail, return receipt requested, postage prepaid.

(e) Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify this Agreement to effect the original intent of the parties.

(f) Amendment and Modification. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized Representative of each Party.

(g) Waiver. No waiver under this Agreement is effective unless it is in writing and signed by the party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion.

(h) Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at Law, in equity, by statute, in any other agreement between the parties or otherwise.

(i) Assignment. Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party; provided, however, that either party may assign this Agreement to an Affiliate. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.

(j) No Third-party Beneficiaries. This Agreement benefits solely the parties to this Agreement and nothing in this Agreement, express or implied, confers on any other person, including without limitation, End Users, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

(k) Choice of Law. This Agreement and all matters arising out of or relating to this Agreement, shall be governed by, and construed in accordance with, the Laws of the State of Virginia, United States of America, without giving effect to any conflict of laws provisions thereof.

(l) Choice of Forum. Except for claims governed by Section 12 (Arbitration), each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the U.S. District Court for the Eastern District of Virginia, Norfolk Division or, if such court does not have subject matter jurisdiction, the courts of the State of Virginia sitting in the city of Chesapeake and any appellate court thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in U.S. District Court for the Eastern District of Virginia, Norfolk Division or, if such court does not have subject matter jurisdiction, the courts of the State of Virginia sitting in the city of Chesapeake. Each party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.

(m) Waiver of Jury Trial. Each party acknowledges and agrees that any controversy that may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

(n) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

(o) Non-Exclusive Agreement. This Agreement is not exclusive. Nothing contained in this Agreement will prevent either party from entering into similar arrangements with, or otherwise providing services to, any other person or entity.

(p) Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party under this Agreement), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s control, including, without limitation: (a) acts of God; (b) flood, fire or explosion; (c) national or regional emergency; (d) compliance with any Law or Governmental Order, rule, regulation or direction, or any action taken by a Governmental Authority; (e) shortage of adequate power or telecommunications or transportation facilities; or (f) any other event which is beyond the reasonable control of such party (each of the foregoing, a "Force Majeure Event"). A party whose performance is affected by a Force Majeure Event shall give Notice to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. If a Force Majeure Event materially impacts performance for ten (10) business days or more (“Extended Delay”), either party may terminate the affected Service without penalty or further obligation upon written notification to the other party.

(q) Change in Law. If any statute, regulation, decision, rule or order by a court of law or Governmental Authority, including, without limitation, the FCC or any state regulatory agency: (a) prohibits performance pursuant to this Agreement; (b) makes such performance illegal, impossible or impractical; or (c) materially adversely impacts either party’s performance of its obligations under this Agreement, including, without limitation, the costs incurred by a party to perform its obligations under this Agreement, the parties will use their commercially reasonable efforts to amend this Agreement so that: (i) performance pursuant to this Agreement is no longer prohibited, illegal, impossible, impractical or is no longer materially adversely impacted; and (ii) the Agreement preserves, to the maximum extent possible, the original intent of the parties. If the parties are unable to amend this Agreement as contemplated above, then the party whose performance or use of Service is rendered prohibited, illegal, impossible, impractical or materially adversely impacted may, in its sole discretion and upon thirty (30) calendar days (or less if required by Law) prior written notification to the other party, cease performance of any such obligations or Service without further obligation or liability, excluding payment of any charges for Service received by prior to notification of change in Law.

(r) Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third-party.