Voice over IP Terms of Service
These Terms of Service constitute the agreement (“Agreement”) between Comstar Technologies (“we,” or “us”) and the user (“you,” “user” or “Customer”) of Comstar Technologies business services and any related products or services (“Service”).
This Agreement governs both the Service and any devices, such as an IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter, switch, router or any other IP connection device (“Device” or “Equipment”), used in conjunction with the Service. If you purchased Equipment from a dealer, retail store or other provider other than Comstar Technologies, you are a “Retail Customer” for purposes of this Agreement.
BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ, UNDERSTAND AND FULLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. EMERGENCY SERVICES – 911 DIALING
1.1 Non-Availability of Traditional 911 or E911 Dialing Service. The Service does not support traditional 911 or E911 access to emergency services in all locations. Where we do not offer traditional 911 or E911 access, we offer a feature known as “911 Dialing” which is a limited emergency calling service available only on Comstar Technologies certified Devices or Equipment. The 911 Dialing feature may not work at all when used in conjunction with a Soft Phone, Virtual Numbers or Subscriber provided Customer Premise Equipment. Our 911 Dialing feature is not automatic; you must separately take affirmative steps, as described in this Agreement and on our website, to register the address where you will use the Services in order to activate the 911 Dialing feature. You must do this for each Comstar Technologies phone number that you obtain. The 911 Dialing feature of the Service is different in a number of important ways from traditional 911 or E911 service as described on our website for 911 Dialing under “Service Agreements,” and below. You shall inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service of (i) the non-availability of traditional 911 or E911, and (ii) the important differences in and limitations of the Comstar Technologies 911 Dialing feature as compared with traditional 911 or E911 dialing.
1.2 Registration of Physical Location Required. For each phone number that you use for the Service, you must register with Comstar Technologies the physical location where you will be using the Service with that phone number. When you move the Device to another location, you must register your new location. If you do not register your new location, any call you make using the 911 Dialing feature may be sent to an emergency center near your old address. You will register your initial location of use when you subscribe to the Service. Thereafter, you may register a new location by contacting Comstar Technologies at firstname.lastname@example.org or 610-692-4021. For purposes of the 911 Dialing feature, you may only register one location at a time for each phone line you use with the Service.
1.3 How Emergency Personnel are Contacted. We contract with a third party to use the address of your registered location to determine the nearest emergency response center and then forward your call to a general number at that center. When the center receives your call, the operator will not have your address and may not have your phone number. You must therefore provide your address and phone number in order to get help. Some local emergency response centers may decide not to have their general numbers answered by live operators 24 hours a day. If we learn that this is the case, we will send your call instead to a national emergency calling center and a trained agent will contact an emergency center near you to dispatch help. You hereby authorize us to disclose your name and address to third-party service providers, including, without limitation, call routers, call centers and public service answering points, for the purpose of dispatching emergency services personnel to your registered location.
1.4 Service Outages.
(a) Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing.
(b) Service Outages Due to Internet Outage or Suspension or Termination of Broadband Service or ISP Service.
Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning.
(c) Service Outage Due to Suspension or Termination of Your Comstar Technologies Account. Service outages due to suspension or termination of your account will prevent all Service, including 911 Dialing, from functioning.
(d) Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including the 911 Dialing feature, may not function. You acknowledge that Comstar Technologies is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 Dialing that may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you terminate the Service in accordance with this Agreement.
(e) Other Service Outages. If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement. 1.6 Re-Activation Required if You Change Your Number or Add or Port New Numbers. 911 Dialing does not function if you change your phone number or if you add or port new phone numbers to your account, unless and until you successfully register your location of use for each changed, newly added or newly ported phone number.
1.5 Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.
1.6 Possible Lack of Automatic Number Identification. It may or may not be possible for the local emergency personnel to automatically obtain your phone number when you use 911 Dialing. Our system is configured to send the automatic number identification information; however, one or more telephone companies, not us, route the traffic to the emergency response center and that center may not be capable of receiving and passing on that information. As a result, the operator who answers your 911 Dialing call may not be able to automatically obtain your phone number and call you back if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your phone number, or if the Service is not operational for any reason.
1.7 No Automated Location Identification. In most service areas, it is not possible at this time to transmit to the local emergency response center the address that you registered for 911 Dialing. You will need to state the nature of your emergency promptly and clearly, including your location (and possibly your telephone number), as the operator will not have this information. Emergency personnel will not be able to find your location if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your location, or if the Service is not operational for any reason.
1.8 Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither Comstar Technologies nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless Comstar Technologies, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorney’s fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
1.9 Alternate 911 Arrangements. If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Service.
2.1 Term. Service is offered on a monthly or multi-month basis as is determined in your Service activation or order form. The term begins on the date that Comstar Technologies activates your Service and ends on the day before the anniversary date of your Term. Subsequent terms of this Agreement automatically renew for a like term unless you give us written notice of non-renewal at least thirty (30) days before the end of the monthly term in which the notice is given. You are purchasing the Service for full monthly terms, meaning that if you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month’s charges to the end of the then-current term, including, without limitation, unbilled charges (recurring and usage based), plus a termination fee, if applicable, all of which will immediately become due and payable. You will also be responsible for the next full month’s charges in the event that you do not provide the requisite thirty days’ notice of termination prior to the expiration of the then-current term. Expiration of the term or termination of Service will not excuse you from paying all accrued and unpaid charges due under this Agreement.
2.2 Use of Service and Comstar Technologies provided Device. You shall not resell or transfer the Service or the Device to another party without our prior written consent. You are prohibited from using the Service or the Device for auto- dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service or the Device for any of the aforementioned or similar activities.
2.3 Use of Service only. For Service only customers, you are responsible for supplying, operating and supporting the Customer Premise Equipment for use with the Service. In addition, any customer supplied equipment must be pre- approved by Comstar Technologies in writing. You shall not resell or transfer the Service to another party without our prior written consent. You are prohibited from using the Service for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service for any of the aforementioned or similar activities.
2.4 Prohibited Uses.
(a) Unlawful. You shall use the Service and the Device only for lawful purposes. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device for an unlawful purpose. In the event of such termination, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or the Device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, Comstar Technologies will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others. (b) Inappropriate Conduct. You shall not use the Service or the Device in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device in any of the aforementioned ways. In the event of such termination, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or the Device in any of the aforementioned ways, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, Comstar Technologies will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others
2.5 Copyright; Trademark; Unauthorized Usage of Device; Firmware or Software.
(a) Copyright; Trademark. The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on our websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of our websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) are and will at all times remain our exclusive property. Nothing in this Agreement grants you the right or license to use any of our marks.
(b) Unauthorized Usage of Device; Firmware or Software. You have not been granted any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You expressly agree that the Device is exclusively for use in connection with the Service and that we will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. We reserve the right to prohibit the use of any interface device that we have not provided to you. You hereby represent and warrant that you possess all required rights, including software and/or firmware licenses, to use any interface device that we have not provided to you. In addition, you shall indemnify and hold us harmless against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
2.6 Tampering with the Device or Service. You shall not change the electronic serial number or equipment identifier of the Device or to perform a factory reset of the Device without our prior written consent. We reserve the right to terminate your Service if we believe, in our sole and absolute discretion, that you have tampered with the Device. In the event of such termination, you will remain responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable. You shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose.
2.7 Theft of Service. You shall notify us immediately, in writing or by calling our customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time as we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service.
2.8 Return of Device (Does Not Apply to Customers who use Devices not provided by Comstar Technologies directly)
(a) Retail Customers. A Retail Customer may only return the Device to the retail store, dealer or other provider from which the Retail Customer purchased the Device. All returns will be subject to the return policy of such retail store, dealer or other provider. We will not accept any Device returned to us from a Retail Customer.
(b) Non-Retail Customers. Non-Retail Customers may return the Device to us within fourteen (14) days of the termination of Service to receive a credit for any termination fee (See Section 3.6) provided that:
• the Service is terminated within the first thirty (30) days following the activation of the Service;
• the Device is in original condition, reasonable wear and tear excluded;
• the original proof of purchase are returned with the Device, together with the original packaging, all parts, accessories, and documentation;
• prior to returning the Device to us, you obtain a valid return authorization number from our customer care department, which can be reached at Support@comstar-usa.com or 610-692-4021; and
• you pay all costs of shipping the Device back to us.
If you disconnect multiple lines, we will issue you a credit for all termination fees upon receipt of all Devices in accordance with the requirements set forth above.
If you receive cartons or Devices that are visibly damaged, you must note the damage on the carrier’s freight bill or receipt and keep a copy. In such event, you must keep the original carton, all packing materials and parts intact in the same condition in which they were received from the carrier and contact our customer care department immediately at Support@comstar-usa.com or 610-692-4021
2.9 Number Transfer on Service Termination. Upon the termination of your Service, Comstar will release to your new service provider the telephone number(s) that you ported (transferred or moved over) to us from your previous service provider and used in connection with your Service if:
• such new service provider is able to accept such number;
• your account has been properly terminated;
• your account is completely current, including payment for all charges and applicable termination fees; and
• you request the transfer upon terminating your account.
2.10 Service Distinctions. The Service is not a telecommunications service and we provide it on a best efforts basis. Important distinctions exist between telecommunications service and the Service offering that we provide. The Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.
2.11 Ownership and Risk of Loss. You will own the Device and bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is returned to us in accordance with this Agreement.
2.12 No 0+ or Operator Assisted Calling; May Not Support x11 Calling. The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.
2.13 No Directory Listing. The phone numbers you obtain from us will not be listed in any telephone directories. Phone numbers transferred from your local phone company may, however, be listed. As a result, someone with your phone number may not be able to utilize a reverse directory to lookup your address.
2.14 Incompatibility with Other Services.
(a) Security Systems. The Service may not be compatible with security systems. You may be required to maintain a telephone connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed in your home or business. You are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
(b) Certain Broadband and Cable Modem Services. You acknowledge that the Service presently may not be compatible with some broadband services. You further acknowledge that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
3. CHARGES; PAYMENTS; TAXES; TERMINATION
3.1 Billing. When the service is activated, you must provide us with a valid email address and a credit or debit card number from a card issuer that we accept. We reserve the right to stop accepting credit or debit cards from one or more issuers. If your credit or debit card expires, you close your account, your billing address changes, or your credit or debit card is canceled and replaced on account of loss or theft, you must advise us at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which we decide to bill in arrears) to your credit or debit card, including but not limited to:
• activation fees;
• monthly Service fees;
• international usage charges;
• advanced feature charges;
• equipment purchases;
• termination fees; and
• shipping and handling charges.
The amount of such fees and charges shall be published on our website and may change from time to time. Notification of monthly invoices will be sent to you via your email address on file with us. We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $250. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on our website.
3.2 Billing Disputes. You must notify us in writing within seven (7) days after receiving your credit or debit card statement if you dispute any Comstar Technologies charges on that statement or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to:
Hosted Voice Billing Comstar Technologies, LLC
1155 Phoenixville Pike Suite 114-115 West Chester, PA 19380
3.3 Payment and Collection.
(a) Payment. We accept payment by credit or debit card, check, or electronic fund transfer. Your subscription to the Service authorizes us to charge your credit or debit card or authorize electronic fund transfers. This authorization will remain valid until 30 days after we receive written notice from you terminating our authority to charge your credit or debit card, whereupon we will charge your credit or debit card for the termination fee, if applicable, and any other outstanding charges and terminate your Service. We may terminate your Service at any time in our sole and absolute discretion if any charge to your credit or debit card is declined or reversed, your credit or debit card expires and you have not provided us with a valid replacement credit or debit card or in case of any other non-payment of account charges.
(b) Collection. If your Service is terminated, you will remain fully liable to us for all charges pursuant to this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorney’s fees.
(c) Late Fees- A late payment charge may apply for unpaid balances. The charge is the greater of $30 or 1.5% of the invoice as permitted by law, and are liquidated damages, not penalty.
3.4 Termination; Discontinuance of Service. We reserve the right to suspend or discontinue the Service consistent with sections 2.5, 2.8, 2.9, 3.3 and 7. If your Service is terminated you will be responsible for contracted fees through the then current term, including, without limitation, unbilled monthly recurring charges, anticipated usage based on the average billed over prior months, and any applicable termination fees (if applicable), all of which will immediately become due and payable. The term of this Agreement will run from the Effective Date until the end of the term (of any continuation thereof) of each Service. The initial minimum term of for each Service is set forth in the Service Activation Order (each an “Initial Term”). The start date for the Initial Term of each Service will begin on the Billing Start Date. Customer must terminate a Service or the Agreement in writing by providing Comstar Technologies with at least thirty days prior written notice. Please send termination notices to Support@comstar-usa.com, Attn: Service Terminations
3.5 Taxes. You are responsible for all applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.
3.6 Termination Fee. If Customer elects to terminate this Agreement or any Service prior to the expiration of a Service’s Term, Customer must provide thirty days advance notice and must pay the Early Termination Fees for each Service that has not completed its Term. The Early Termination Fees should not exceed the fees that would have been owed through the end of such Service’s Term or any agreed upon renewal of the Initial Term. Customer and Comstar Technologies agree that an Early Termination Fee is not a penalty but serves as an accurate approximation of the damages to Comstar Technologies that result from the termination before the end of its Term. Upon termination or expiration of this Agreement for any reason, Customer shall promptly pay all amounts owed through the month of termination as well as any applicable Early Termination Fees.
3.7 Payphone Charges. If you use our “Toll Free” feature or any toll free feature that we offer in the future, we will be entitled to recover from you any charges imposed on us either directly or indirectly in connection with toll free calls made to your number. We may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion as we deem appropriate for the recovery of these costs.
3.8 Charges for Directory Calls (411). We will charge you $1.50 for each call made to Comstar Technologies directory assistance.
4. LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES
4.1 Limitation of Liability. We will not be liable for any delay or failure to provide the Service, including 911 Dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
• an act or omission of an underlying carrier, service provider, vendor or other third party;
• equipment, network or facility failure;
• equipment, network or facility upgrade or modification;
• force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions;
• equipment, network or facility shortage;
• equipment or facility relocation;
• service, equipment, network or facility failure caused by the loss of power to you;
• outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party;
• any act or omission by you or any person using the Service or Device provided to you; or
• any other cause that is beyond our control, including, without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including, without limitation, 911 Dialing) to be connected or completed, or forwarded.
Our aggregate liability under this agreement will in no event exceed the Service charges with respect to the affected time period.
4.2 Disclaimer of Liability for Damages. IN NO EVENT WILL COMSTAR TECHNOLOGIES, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
4.3 Indemnification and Survival.
(a) Indemnification. The Companies shall defend, indemnify, and hold harmless their respective officers, directors, employees, affiliates and agents and any other service provider party with relation to this Agreement, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorney’s fees) by, or on behalf of, you or any third party or user of the Service, relating to the Services, including, without limitation, 911 Dialing, or the Device.
(b) Survival. The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.
4.4 No Warranties on Service. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER COMSTAR TECHNOLOGIES NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES DEVICES, OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF COMSTAR TECHNOLOGIES OR ITS SERVICE PROVIDER’S OR VENDORS’ NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY COMSTAR TECHNOLOGIES OR COMSTAR TECHNOLOGIES AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
4.5 Device Warranties
(a) Limited Warranty. Except as set forth herein, if you received the Device new from us and the Device included a limited warranty at the time of receipt, you must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation.
(b) No Warranty. If your Device did not include a limited warranty from us at the time of receipt, you are accepting the Device “as is”. You are not entitled to replacement, repair or refund in the event of any defect.
(c) Non-Retail Customer Limited Warranty. For Non-Retail Customers only, we will provide a limited warranty on the Device as to manufacturing defects only for a period of one (1) year from the date of purchase. This Non-Retail Customer limited warranty does not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, does not apply to any defect caused by damage in transit, retailer handling or Non-Retail Customer handling. A Non-Retail Customer’s sole remedy for any breach of this Non-Retail Customer limited warranty is to obtain a repaired or replacement Device, by following the return procedures set forth in Section 2.10. Non-Retail Customer must include with the returned Device a letter stating that the Non-Retail Customer is returning the Device for warranty repair or replacement and stating the nature of the defect. The Non-Retail Customer limited warranty will also apply in lieu of the limited warranty included with the Device if such included limited warranty is less favorable to Non- Retail Customer than that contained herein.
(d) Disclaimer. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE AND THE NON-RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE DEVICE OR ANY FIRMWARE OR SOFTWARE IS “ERROR FREE” OR WILL MEET CUSTOMER’S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE. DEVICE WARRANTIES DO NOT APPLY TO BUSINESS PLUS CUSTOMERS.
4.6 No Third Party Beneficiaries. No provision of this Agreement provides any person or entity not a party to this
Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
4.7 Content. You will be liable for any and all liability that may arise out of the content transmitted by you or to any person, whether authorized or unauthorized, using your Service or Device (each such person, a “User”). You shall assure that your and your User’s use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to terminate or suspend your Services and remove your or your Users’ content from the Service, if we determine, in our sole and absolute discretion, that such use or content does not conform with the requirements set forth in this Agreement or interferes with our ability to provide Services to you or others. Our action or inaction under this Section will not constitute any review or approval of your or Users’ use or content.
5.1 Governing Law. The Agreement and the relationship between you and us is governed by the laws of the State of Pennsylvania without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 5.2, you shall submit to the personal and exclusive jurisdiction of the courts located within the state of Pennsylvania and waive any objection as to venue or inconvenient forum.
5.2 Mandatory Arbitration and No Jury Trial. Any dispute or claim between you, any member of your household or any guest or employee of you and us arising out of or relating to the Service or Device will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in Montgomery county, Pennsylvania. The arbitrator’s decision will follow the plain meaning of the relevant documents, and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. All claims shall be arbitrated individually. You shall not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN, MONTGOMERY COUNTY PENNSYLVANIA.
5.3 No Waiver of Rights. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
5.4 Entire Agreement. This Agreement, including any future modifications as may occur within the terms of the Agreement, and the rates for Services found on our website constitute the entire agreement between you and Comstar Technologies and govern the use of the Service by you, members of your business, employees and guests. This Agreement supersedes any prior agreements between you and Comstar Technologies and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
5.5 Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
6. REASONABLE USE LIMITATIONS
Unusually high usage of the Service attributable to individual Accounts may impair Comstar Technologies ability to provide the Services and/or indicate misuse of the Services. Accordingly, for all Service Plans, reasonable use means that your use of the Service does not materially impair Comstar Technologies ability to provide the Service to other users.
7. 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 this 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-in lines, call centers, 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 Comstar Technologies 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 Comstar Technologies 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.
Comstar Technologies 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.
Except where prohibited by law, if you violate this Reasonable Use Policy, including but not limited to by Excessive Use of the Service, you hereby acknowledge and agree that Comstar Technologies 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 Comstar Technologies published per minute rates, for any Excess Use or automatically converting your Unlimited Plan to a metered plan. You hereby agree to pay Comstar Technologies, and hereby authorize Comstar Technologies to charge your credit card for any additional fees, charges and penalties related to any Plan Modification.
8. FUTURE CHANGES TO THIS AGREEMENT
We may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on www.comstar-usa.com. Comstar Technologies will make best efforts to notify Customers in advance via email regarding changes to the terms and conditions of this Agreement. Such changes will become binding on you on the date they are posted to our website and no further notice by us is required upon your continued use of the Service. The Agreement as and when posted supersedes all previously agreed to electronic and written terms of service, including, without limitation, any terms included with the packaging of the Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including, without limitation, any written terms enclosed within the packaging of the Device.
Master Products and Services Agreement
THIS MASTER PRODUCTS AND SERVICES AGREEMENT (this “Master Agreement”), CST104070-15, is made and entered into as of this date _________ (the “Effective Date”) by and between Comstar Technologies, LLC or its designated affiliate (“COMSTAR”) with an office located at 1155 Phoenixville Pike Suite 114-115, West Chester, PA 19380 and the CUSTOMER identified in the applicable statement of work (“SOW”) attached hereto (“CUSTOMER”) with an office located at ____________. Each of COMSTAR and CUSTOMER may hereinafter be referred to, individually, as a “Party” and, together, as the “Parties.” CUSTOMER understands and agrees that all SOWs, as more fully described on the quote attached hereto, are governed by this Master Agreement and CUSTOMER’S execution and delivery of a SOW to COMSTAR ratifies and confirms CUSTOMER’s acceptance of, and agreement to be bound by, this Master Agreement, as the same may be amended from time to time.
1. Products and Services
1.1 COMSTAR will provide, on a non-exclusive basis, certain equipment, parts, components, peripherals, wiring, accessories, software, third-party warranties and services, and other products (each, a “Product” and, collectively, the “Products”) and/or services (the “Services”) to CUSTOMER pursuant to one or more SOWs and/or activation of services, each of which is incorporated herein by reference and subject to the terms and conditions of this Master Agreement (this Master Agreement together with all SOWs, collectively, this “Agreement”).
1.2 COMSTAR may, from time to time, agree to provide services and perform work not covered by this Master Agreement at a discounted time and materials (“T&M”) rate specified in each SOW during the Term.
2. Term and Termination
2.1 This Master Agreement will become effective on the date service is deemed available to the client and continue until terminated in accordance with this Section 2 (the “Term”); provided, however, that if a client is silent with regard to expiration, then such agreement shall expire, with respect to (a) the purchase of Products (including any related installation), on the date that title to such Product transfers to CUSTOMER in accordance with Section 8.1 hereof or is otherwise decommissioned. Additionally, the Term will renew for a like term unless the Client provides written notice of non-renewal at least thirty (30) days before the end of the then current term.
2.2 Either Party may terminate this Master Agreement or any SOW for convenience with sixty (60) days’ prior written notice to the other Party; provided, however, that if CUSTOMER exercises its right to terminate pursuant to this Section 2.2, (a) a cancellation penalty equal to seventy-five (75%) of the then-remaining aggregate contract value associated with the Services that are to be canceled and (b) all costs and expenses incurred by COMSTAR through the date of such notice will, in each case, become immediately due and payable.
2.3 Either Party may terminate this Master Agreement and/or any SOW for material breach upon written notice (each, a “Notice of Termination”) to the other specifying therein in reasonable detail the nature of such breach and the effective date of termination; provided, however, that if a breach is capable of cure, the Party in breach shall have thirty (30) calendar days following receipt of a Notice of Termination to cure such breach. The termination of one SOW shall have no effect on the validity or enforceability of any other SOW or this Master Agreement including, without limitation, the obligation of CUSTOMER to make timely payment, in full, of all amounts owing in respect of the terminated SOW through the applicable date of termination.
2.4 Upon any termination of this Master Agreement or any SOW pursuant to which software was licensed or a Product was made available but title has not transferred to CUSTOMER by COMSTAR in accordance with Section 8.1 hereof, CUSTOMER will, contemporaneously therewith, uninstall such software and return such Product, as applicable, to COMSTAR.
2.5 Upon written request by CUSTOMER, COMSTAR shall for, a period not to exceed thirty (30) calendar days, assist CUSTOMER in connection with its efforts to transition expired or terminated Services to a new service provider; provided, that (i) termination did not result from CUSTOMER’s breach of this Master Agreement or related SOW and (ii) the Parties agree, in writing, upon a mutually acceptable hourly rate therefor, if not already reflected in the applicable SOW.
3. Invoices and Payments
3.1 COMSTAR will invoice CUSTOMER at the rates and intervals set forth in the applicable SOW but not less frequently than monthly. Invoices will be sent to the e-mail address for CUSTOMER set forth in Section 13.1 of this Master Agreement.
3.2 Notwithstanding anything contained in any quote, purchase order or other document exchanged or delivered by the Parties, CUSTOMER shall pay, in U.S. dollars and without offset of deduction of any kind, the fees and costs (the “Fees”) set forth in the applicable SOW promptly following receipt of an invoice from COMSTAR, but not later than fifteen (15) calendar days after the invoice date.
3.3 The Fees reflected in a SOW and/or invoice are exclusive of any applicable taxes. COMSTAR shall collect from CUSTOMER and remit to the proper authorities all taxes that COMSTAR is required by applicable law to collect from CUSTOMER in connection with the Services. CUSTOMER is responsible for all sales, transfer, custom duties, use, property and any other applicable taxes.
3.4 All amounts not paid when due will be subject to a five percent (5%) late fee if late payments have occurred more than twice in any twelve (12) consecutive month period.
3.5 CUSTOMER shall notify COMSTAR, in writing, at the address for COMSTAR first set forth above ATTN: Accounts Receivable Department, of any disputed Fees within thirty (30) days of the related invoice date; otherwise, the Fees reflected thereon shall be deemed accurate and the Products and Services related thereto accepted by CUSTOMER, in all respects and for all purposes as of the date performed by COMSTAR. The Parties will cooperate in good faith to promptly resolve any Fee dispute.
3.6 COMSTAR reserves the right to withhold Service and other performance if any invoice or account is more than thirty (30) days past due, and CUSTOMER shall be responsible for all costs and expenses of collection including, without limitation, attorneys’ fees and costs, incurred by COMSTAR or its representatives in connection therewith and in enforcing its rights hereunder.
4. Representations and Warranties
4.1 Each Party hereby represents and warrants to the other Party as of the Effective Date and throughout the Term as follows: (a) it is duly organized, validly existing and in good standing under the laws of the state of its incorporation/formation and the laws of each state in which it does business, (b) it has the corporate power and authority to own its properties and conduct its business, (c) it has the full right, power and authority to enter into this Master Agreement and each SOW related hereto and to perform its obligations hereunder and thereunder, (d) This Master Agreement and each SOW related hereto is a legal, valid and binding obligation of it, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and (e) it maintains the insurance required by Section 15 of this Master Agreement.
5.1 CUSTOMER will provide, at no cost to COMSTAR and its designated agents and contractors, all necessary work materials, access to client facilities and computer systems during regular and after business hours as needed.
5.2 CUSTOMER agrees to grant COMSTAR all necessary access to hardware, software, related warranties, network credentials and documentation, whether on CUSTOMER’S premises or by secure remote connection, as applicable.
6. Disclaimer of Liability for Damages
6.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS MASTER AGREEMENT, ANY SOW, OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, NEITHER PARTY, NOR ITS AFFILIATES AND/OR LICENSORS, WILL BE LIABLE TO THE OTHER PARTY, OR ITS AFFILIATES OR LICENSORS, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF, OR RELATING IN ANY WAY TO, THIS MASTER AGREEMENT OR ANY SOW, QUOTE, PURCHASE ORDER, SERVICE OR PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE, AND/OR DAMAGE TO OR DESTRUCTION OR LOSS OF USE OF ANY DATA), EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS, AND IRRESPECTIVE OF THE NEGLIGENCE OF EITHER PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
6.2 COMSTAR may, from time to time, provide hardware and software recommendations, sales and installation services; provided, however, that under no circumstance will COMSTAR be liable for any claim made or action or proceeding brought against CUSTOMER, its affiliates or any of their respective directors, officers, employees, agents or representatives by any manufacturer, vendor, or other person or entity relating in any way thereto. CUSTOMER is solely responsible for all hardware and software warranties, licensing and ownership of all hardware, systems and software.
6.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS MASTER AGREEMENT, ANY SOW, OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, CUSTOMER ACKNOWLEDGES AND AGREES THAT IN NO EVENT WILL COMSTAR’S AGGREGATE LIABILITY IN CONNECTION WITH, OR RELATING IN ANY WAY TO, THIS MASTER AGREEMENT AND ALL SOWs EXCEED THE AGGREGATE DOLLAR AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO LIABILITY DURING THE TWELVE (12-) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE.
7. Limited Warranties
7.1 Any warranty by COMSTAR with respect to the Services shall be as expressly set forth in the applicable SOW; provided, however, that in the absence of warranty language in the applicable SOW, COMSTAR provides the warranty set forth in Section 7.2 below.
7.2 Subject to Section 7.4, COMSTAR warrants that the Services provided will adhere to accepted standard practices of the computer industry and will comply with all applicable federal, state and local laws, rules and regulations and will make commercially reasonable efforts to satisfy the terms of this Master Agreement.
7.3 None of the Products purchased by CUSTOMER through COMSTAR are manufactured by COMSTAR, and COMSTAR makes no representations or warranties whatsoever relating thereto but will transfer to CUSTOMER any manufacturer warranty related thereto to the extent permitted by such manufacturer and applicable law. Any and all claims relating in any way to any goods included in the Services shall exclusively be asserted against the manufacturer of such goods and COMSTAR shall have no liability whatsoever relating thereto.
7.4 The limited warranty set forth in Section 7.2 shall extend for a period of sixty (60) calendar days from the date the particular Service is completed and accepted by CUSTOMER, and CUSTOMER’s sole and exclusive remedy for any breach of such limited warranty shall be to require COMSTAR to cure such breach or, alternatively, if such breach is not cured within thirty (30) calendar days following CUSTOMER’s warranty claim, then CUSTOMER shall be entitled to a refund of the Fees charged for such Service but only if and to the extent such breach is caused by COMSTAR . Any breach of warranty claim must be made within thirty (30) calendar days following the expiration of the warranty period.
7.5 EXCEPT FOR ANY WARRANTY EXPRESSLY SET FORTH IN THE APPLICABLE SOW OR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 7, THE PRODUCTS AND SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OF ANY KIND, WRITTEN OR ORAL, EXPRESS OR IMPLIED, CONTRACTUAL OR STATUTORY INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, COMPATIBILITY OR THAT ANY PRODUCT OR SERVICE WILL BE FREE DEFECT OR IMPAIRMENT ARISING OUT OF, OR RELATING IN ANY WAY TO, ANY THIRD-PARTY TECHNOLOGY OR ANY THIRD-PARTY ACT OR OMISSION INCLUDING, WITHOUT LIMITATION, HACKING OR ANY ACT OR OMISSION OF CUSTOMER, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
8.1 CUSTOMER acknowledges and agrees that all right, title and interest in Products purchased by CUSTOMER pursuant to this Master Agreement, a SOW or a CUSTOMER purchase order shall, to the extent transferrable, transfer to CUSTOMER upon payment, in full, therefor including, without limitation, any related- installation costs by CUSTOMER; provided, however, that if such payment, or any portion thereof, is clawed back due to a bankruptcy-related event involving CUSTOMER (or is otherwise required to be returned to CUSTOMER), then all right, title and interest in such Products, shall, contemporaneously with the occurrence of any such event, automatically revert back to, and vest in, COMSTAR. If it is determined by a court of competent jurisdiction that title to a Product passed prior in time to payment, in full, therefor by CUSTOMER, the parties hereto agree that COMSTAR shall have a security interest in such Product until the date that is ninety (90) days following COMSTAR’s receipt of payment, in full, therefor. In furtherance of the foregoing, CUSTOMER hereby grants COMSTAR a first priority security interest in such Products. Notwithstanding anything to the contrary contained herein or in any SOW or CUSTOMER purchase order, CUSTOMER acknowledges and agrees that the manufacturer of Products has, and will at all times retain, certain intellectual property rights in the items manufactured by it and such rights will not transfer, in whole or in part, to CUSTOMER at any time.
9. Intellectual Property
9.1 Except as otherwise expressly set forth in a SOW, each Party acknowledges and agrees that no intellectual property rights are being transferred, assigned or licensed, in whole or in part, to the other Party in connection with the Services, any SOW or this Master Agreement.
9.2 Except as otherwise expressly provided in a SOW, COMSTAR shall retain all right, title and interest in and to all property rights relating in any way to (a) the Services, (b) information and material shared with, or transferred to, CUSTOMER by COMSTAR pursuant to a SOW (“Deliverables”), (c) works of authorship, programs, software, code, source code, system design, processes, tools, reports, manuals, supporting materials, drawings, diagrams, flowcharts, templates, technology, modifications, fixes and enhancements (“Works”) including, without limitation, all Works jointly developed by COMSTAR and CUSTOMER and all Works developed by CUSTOMER that are derived from, or incorporate, in whole or in part, any Service, Deliverable, Work or feedback provided by COMSTAR in connection with this Master Agreement, a SOW or the Services and (d) copyrights, trademarks, service marks, trade dress, patents, patent applications, trade secrets, know-how and other proprietary rights, however and wherever arising (clauses (a) through (d), collectively, the “COMSTAR IP”). CUSTOMER hereby assigns to COMSTAR all right, title and interest it may hereafter acquire in any COMSTAR IP, and agrees to promptly execute all documents necessary to vest all right, title and interest therein to COMSTAR.
9.3 Each Party agrees not to, directly or indirectly, reverse engineer, de-compile, disassemble or otherwise attempt to derive source code or other trade secrets or other proprietary information from the other Party, its subcontractors or its third party vendors.
9.4 For all reports and documents generated expressly for and containing CUSTOMER specific information, shall be owned by CUSTOMER.
10.1 CUSTOMER hereby acknowledges and agrees that it has acquired, prior to the Effective Date, and will acquire during the Term, knowledge with respect to information, technology and other matters, both similar and dissimilar, which the other Party maintains on a confidential basis concerning its business, operations and finances including, without limitation, information concerning the other Party’s intellectual property, services, research, pricing, employees, vendors, contractors and other confidential or proprietary, in each case, the confidentiality of which the other Party takes reasonable steps to protect (any and all of which is herein referred to as “Confidential Information”). Each Party hereby agrees that it will take reasonable precautions to protect the Confidential Information of the other Party and will not, at any time, without the written consent of the other Party, divulge, directly or indirectly, any Confidential Information of the other Party except as approved, in writing, by the other Party in connection with the provision of the Products and Services, or use the Confidential Information in any manner or for any purpose except in connection with the provision of the Services. Each Party acknowledges and agrees that (a) the Confidential Information of the other Party is valuable and unique to it, (b) the unauthorized use or disclosure of the other Party’s Confidential Information would cause irreparable harm to it and (c) nothing herein shall prohibit a Party from pursuing any remedy, whether in law or equity, available to it for breach or threatened breach of this Section 10.1. Notwithstanding the foregoing, each Party may disclose the terms contained in this Master Agreement and a SOW to its legal advisors but only on a confidential basis in connection with the provision of the Services. Confidential Information shall not include (a) information that is or hereafter becomes generally known to the public, except by reason of a breach of this Section 9.1 or
(c) information required to be disclosed by law or court order.
11.1 Without the prior written consent of COMSTAR, CUSTOMER agrees that during the Term and for a period of two (2) consecutive years thereafter, CUSTOMER shall not, directly or indirectly, for itself or others contact, solicit, influence or induce any employee or other person including, without limitation, any consultant, representative, contractor or agent working for or with COMSTAR (or any of its affiliates) to terminate his/her/its employment or other relationship with COMSTAR (or any of its affiliates).
11.2 In the event CUSTOMER hires or retains any COMSTAR personnel, CUSTOMER agrees to pay a fee to COMSTAR equal to 50% of the total compensation (salary, benefits, bonus, and perks) paid to that individual by COMSTAR during the last six (6) months he or she was an employee of COMSTAR.
12.1 Each Party agrees not to, directly or indirectly, disparage or make any statement that could reasonably be perceived as derogatory or defamatory about the other Party or any of its affiliates or their respective businesses, operations, products, services, owners, employees, representatives, contractors or agents, nor shall either Party induce, encourage or condone others to disparage or make any such statements to any person or entity.
13.1 Except where electronic notice is permitted herein, any notice given or made pursuant to this Master Agreement will be effective if in writing and delivered by reputable overnight courier or by certified mail, return receipt requested, and delivered at the address provided herein for each Party, or such other address as may be furnished by either Party to the other.
14.1 Each Party will indemnify, defend and hold harmless the other Party, its affiliates and subsidiaries, and their respective owners, directors, officers, employees and agents, from and against any and all actions, claims, demands, losses, damages, fines, penalties and costs (including, without limitation, attorneys’ fees and costs) arising out of (a) a third party infringement claim related to material developed by COMSTAR, and transferred to CUSTOMER, pursuant to a SOW or (b) any (i) personal injury (including death) or loss or damage to tangible property (other than data or information) to the extent such injury or damage is the result of the negligence or wrongful misconduct of the indemnifying Party or its employees or (ii) breach of this Master Agreement or a SOW by the indemnifying Party; provided, however, that in no event will either Party be liable for any incidental, consequential, special, indirect or punitive damages, losses or claims including, without limitation, lost profits or revenue, lost savings, lost productivity, lost data, lost use of equipment and interruption of business losses, in any case, even if previously advised of the possibility and regardless of the type or nature of the action or the legal theory. Notwithstanding anything to the contrary contained herein or in any other agreement between the Parties relating to the Products and/or Services, CUSTOMER acknowledges and agrees that COMSTAR’s aggregate liability in connection with, or relating in any way to this Master Agreement and the SOWs shall not exceed the dollar amount paid by CUSTOMER during the immediately preceding twelve (12-) month period for the specific Product or Service giving rise to liability. The Party seeking indemnification shall provide prompt written notice to the other Party; provided, that no delay in providing such notice shall relieve the indemnifying Party of its indemnification obligation unless, but only to the extent that, the delay materially prejudices the indemnifying Party’s ability to defend the claim.
15.1 During the Term, each Party agrees to maintain through a reputable insurer (a) statutory workers’ compensation in accordance with all applicable international, national, state and local requirements; (b) employer’s liability with liability limits of $1,000,000 per each accident, each employee and each disease; (c) commercial general liability including coverage for products liability, completed operations (for at least two years after the performance of the Services) and contractually assumed obligations, with liability limits of at least $1,000,000 per occurrence for property damage, $1,000,000 per occurrence for bodily injury and $1,000,000 per occurrence for personal injury; (d) comprehensive automobile liability for all owned, non-owned and hired vehicles with bodily injury limits of no less than $1,000,000 per person, $1,000,000 per accident; and property damage limits of no less than $1,000,000 per accident, each providing for not less than thirty (30) calendar days written notice to the other Party prior to any cancellation, modification, or non- renewal thereof. Each Party shall cause the other Party to be named as an additional insured under the required insurance coverage and shall provide the other Party with a certificate of insurance evidencing the existence of such insurance coverage within five (5) calendar days of request therefor.
16. Relationship of the Parties
16.1 The Parties relationship is one of independent contractors, and nothing in this Master Agreement or any SOW related hereto is intended to create, nor shall it be construed as creating, a partnership, joint venture, agency or employer- employee relationship between the Parties.
17. Reservation of Rights; Competition
17.1 CUSTOMER acknowledges and agrees that COMSTAR has the unrestricted right to conduct business with any person or entity on the terms COMSTAR deems appropriate, in its sole and absolute discretion, notwithstanding that such person or entity is, or may become, a competitor of CUSTOMER or any of its affiliates or subsidiaries, or their respective owners or members.
18. Force Majeure
18.1 COMSTAR shall not be responsible or liable for any failure or delay of performance in connection with, or relating in any way to, the Products, the Services, this Master Agreement or any SOW if such failure or delay relates in any way to an act of God or public enemy, war, terrorist attack, insurrection, riot, epidemic, fire, flood, severe weather, blackout, utility disruption, explosion, earthquake, serious accident, strike, labor trouble or work interruption or slowdown, disruption to a telecommunication or Internet connection, government regulation or any other cause beyond its reasonable control.
19.1 The provisions of Sections 2.2, 2.3, 3, 6, 7, 8, 9, 10, 11, 12, 14, 16, 17, 18, 19, 20, 21 and 22.1(a) through 22(j) hereof shall survive the expiration or any earlier termination of this Master Agreement
20. Governing Law
20.1 This Master Agreement shall be deemed to be made in the Commonwealth of Pennsylvania, and shall be governed by and construed and interpreted in accordance with the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law principles.
21. Export Controls
21.1 CUSTOMER agrees not to disclose or export, either directly or indirectly, any technology or information, or the direct product thereof, acquired by it pursuant to this Master Agreement to any destination or person if such disclosure or export is prohibited by the laws and regulations of the United States of America. This Section 21.1 shall survive the expiration or any earlier termination of this Master Agreement.
22.1 (a) This Master Agreement together with the SOWs related hereto constitutes the entire agreement between the Parties hereto with respect to the Products and Services and supersedes all prior agreements, understandings and arrangements, both verbal and written, between the Parties with respect thereto.
(b) FUTURE CHANGES TO THIS AGREEMENT We may be required to change the terms and conditions of this Agreement to comply with regulatory adjustments, changes in governing law, or to address commercial best practices. Notices will be considered given and effective on the date posted on www.comstar-usa.com. Comstar Technologies will make best efforts to notify Customers in advance via email regarding changes to the terms and conditions of this Agreement. Such changes will become binding on you on the date they are posted to our website and no further notice by us is required upon your continued use of the Service. The Agreement as and when posted supersedes all previously agreed to electronic and written terms of service, unless otherwise amended in the original set of contract documents.
(c) CUSTOMER shall not assign this Master Agreement or any SOW, whether by operation of law or otherwise, nor delegate or subcontract any of its duties hereunder or thereunder without the prior written consent of COMSTAR.
(d) This Master Agreement shall be for the benefit of, and binding upon, the Parties hereto and their respective permitted successors and assigns, and nothing contained herein or in any SOW shall confer any rights upon any third party as an intended beneficiary or otherwise.
(e) The invalidity of any one or more of the words, phrases, sentences, clauses or sections contained in this Master Agreement or a SOW shall not affect the validity or enforceability of the remaining provisions hereunder or thereunder.
(f) The waiver by either Party of a breach or violation of any term or provision of this Master Agreement or a SOW shall not operate, or be construed, as a waiver of any subsequent breach or violation, whether or not similar.
(g) Section headings contained in this Master Agreement or a SOW are for convenience of reference only and shall not affect in any way the interpretation of this Master Agreement or SOW, as applicable.
(h) EACH PARTY HEREBY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY AND BENCH TRIAL IN CONNECTION WITH ANY DISPUTE BETWEEN THE PARTIES WHICH RELATES IN ANY WAY TO THIS MASTER AGREEMENT OR THE SERVICES.
(i) If a dispute of any kind between the Parties arises out of, or relates in any way to, this Master Agreement, a SOW, a Product or the Services, the Parties shall attempt, in good faith, to settle such dispute amicably within sixty (60) calendar days after the date on which such dispute arises. If an amicable settlement is not reached by the end of such sixty (60) calendar day period, such dispute shall be settled by binding arbitration held in Chester County and in accordance with the Commercial Arbitration Rules of the American Arbitration Association; provided, that any damages awarded shall be limited as set forth in Section 6.3 hereof.
(j) This Master Agreement and each SOW may be executed in one or more counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. Counterparts executed and/or delivered by electronic means shall be deemed originals for all purposes.