Service Provider Terms of Service
These Service Provider Terms of Service (“ToS”) constitute the agreement between DTEL Telecommunications Inc (“we,” “us,” “DTEL”) and the Service Provider identified on the DTEL Order Form (“Order Form”) executed by DTEL and Service Provider (“you,” or “Service Provider”), who acts as a non-exclusive provider of DTEL’s business services and any related products or services set forth on the Order Form (“Service(s)”) to Service Provider’s customers (“End-Users”) either directly or through its Sales Agents. DTEL and Service Provider may be referred to in the ToS individually as a “Party” and collectively as the “Parties”.
1. “Accrued Liability” shall mean the sum of (i) the total invoiced amounts which remain unpaid, plus (ii) the unbilled but accrued usage of Service Provider.
2. “Agreement” shall mean this ToS (including any additional terms or policies referenced herein), the Order Form and attachments thereto or terms referenced therein.
3. “DTEL IP” shall mean all intellectual property rights associated with any design, data, specification, know-how, software, device, technique, algorithm, method, discovery or invention, whether or not reduced to practice, relating to any (a) Service, including any DTEL work product, (b) result of a Service, (c) joint development, and/or (d) enhancement or improvement to or derivative of any of the foregoing.
4. “Confidential Information” shall mean any confidential information or data disclosed by a Disclosing Party to the Receiving Party or Recipient under or in contemplation of this Agreement, including the terms and conditions of this Agreement, and any information posted on www.DTEL.com or any sub-domain of DTEL.com (to the extent that such information is not publicly accessible) or which the Receiving Party knows or reasonably ought to know is confidential, proprietary or trade secret information of the Disclosing Party. Confidential Information excludes any information or data which the Recipient can demonstrate: (i) is available to the public; (ii) becomes available to the public through no breach of this or any other agreements between the Parties; (iii) before its disclosure hereunder, was known by the Recipient without any obligation owing to the Disclosing Party (directly or indirectly) to hold it in confidence; (iv) is received from a third party who does not owe any duty to the Disclosing Party (directly or indirectly) with respect to such information; (v) is independently developed by the Recipient without the use of Confidential Information of the Disclosing Party; or (vi) is approved for release by written authorization of the Disclosing Party but only to the extent of such authorization and without any disassembly, reverse engineering, or similar undertaking by Recipient.
5. “Credit Limit” shall mean the credit limit applicable to Service Provider under this Agreement, which is identified on the Order Form to this Agreement.
6. “Demand Labor” shall mean any work or services performed by DTEL for Service Provider that is either: (a) not specifically identified in an Order Form and is not identified in DTEL’s published offerings as having a set rate, or (b) set forth on a separately executed Statement of Work by and between DTEL and Service Provider.
7. “Deposit” shall mean the cash security deposit set forth in the Order Form to this Agreement, and any now or later executed attachment.
8. “Disclosing Party” shall mean, as it relates to particular Confidential Information, the Party disclosing its own Confidential Information to the other Party. A Disclosing Party includes such Party’s corporate affiliates that disclose such Confidential Information.
9. “Effective Date” shall mean the date identified on the applicable Order Form.
10. “Equipment” is included in the DTEL Services and shall mean any devices, hardware products or appliances purchased by Service Provider from DTEL.
11. “Losses” shall mean any allegations, claims, demands, suits, proceedings, liabilities, judgments, awards, losses, damages, physical injury or death, damage to real property, costs or expenses (including reasonable legal fees).
12. “Need to Know” shall mean where an employee reasonably requires the Confidential Information to perform his or her responsibilities in connection with this Agreement.
13. “Receiving Party” or “Recipient” shall mean, as it relates to particular Confidential Information of the other Party, the Party receiving such Confidential Information. A Receiving Party or Recipient includes such Party’s corporate affiliates that receive such Confidential Information.
14. “Software” shall mean (i) computer programs, written by DTEL or its affiliates, contractors or other entities that comprise a series of instructions, rules, routines, or statements, regardless of the media in which recorded, which allow DTEL to deliver its Services and products or to integrate with other systems, people, and services. This includes source code which allows computers, servers, and the like to perform a specific operation or series of operations; and (ii) recorded information comprising source code listings, design details, algorithms, processes, flow charts, formulas, and related material that would enable the computer program to be produced, created, operated, installed, or compiled.
15. “Sales Agent” shall mean any party appointed by Service Provider to sell the DTEL Services on behalf of Service Provider.
16. “Service Prices” shall mean a price list attached to an Order Form, which shall provide the details of the Services being provided by DTEL.
17. “Taxes and Fees” shall mean all taxes and fees arising in any jurisdiction imposed on or incident to the provision, sale or use of Service, including but not limited to value added, consumption, sales, use, gross receipts, foreign withholding (which will be grossed up), excise, access, bypass, ad valorem, franchise or other taxes, fees, duties or surcharges (including regulatory and 911 surcharges), whether imposed on DTEL or a DTEL affiliate, along with similar charges stated in an Order Form.
1. Certain Services provided by DTEL may require Demand Labor for implementation. Under such a circumstance, DTEL shall notify Service Provider of the requirement of such Demand Labor, and shall require Service Provider’s written consent (which may be in the form of a separately executed Statement of Work) to proceed with the performance of such Demand Labor.
2. Any training of Service Provider personnel by DTEL may be held at DTEL facilities, online, or at a location as determined by DTEL, in accordance with DTEL’s schedule. Service Provider is required to hold DTEL certifications as set forth in the training policy provided during the onboarding process. Only Service Provider employees who hold a DTEL certification are eligible to submit support tickets and interact with support and engineering resources, where offered.
3. The provision of 911 Dialing Services shall be subject to the Emergency Services – 911 Dialing terms.
4. 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 ToS) services in one or more (or all) service areas.
5. The phone numbers you and your End-Users obtain from us will not be listed in any telephone directories. Phone numbers transferred from your local phone company or those of your End-Users may, however, be listed. As a result, someone with your phone number or the number of your End-User may not be able to utilize a reverse directory to lookup your address or that of your End-User.
6. Where the Services include technical support, it is offered by DTEL during normal U.S. business hours of 7:30 AM to 8:00 PM ET Monday through Friday. For service impacting issues only, support is offered 24/7. Support is provided only to a) Service Provider employees who have attended DTEL training and received certification to receive support, or b) who have been otherwise approved by DTEL. DTEL Support does not include troubleshooting of End-User LAN and WAN issues, third party hardware or software, device issues, or any Service related issues outside of DTEL’s direct control.
7. DTEL may retire Services that become obsolete, and replace them with new Services that provide the same or similar functionality, as necessary, upon notice to Service Provider.
3. SERVICE PROVIDER OBLIGATIONS.
2. You shall notify us immediately, in writing or by calling our customer support line, if your Service or that of your End-Users is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you contact us, you must provide your account number, the account number of your applicable End-User and a detailed description of the circumstances of the fraudulent or unauthorized use of Service. Failure to do so in a timely manner may result in the termination of your Service or your End-User’s Service, and additional charges. Until such time as we receive notice of the fraudulent or unauthorized use, you and/or the applicable End-User will be liable for any and all stolen, fraudulent or unauthorized use of the Service.
3. Service Provider acknowledges that:
3.1. An internet connection is required for Service Provider and/or its End-Users to utilize the Services, and DTEL is not responsible for obtaining or ensuring consistent access to such internet service. Blockage or outage of Service Provider or its End-Users’ internet access will not be cause for withholding payments due under this Agreement.
3.2. The Service is not a telecommunications service. Important distinctions exist between telecommunications services and the Services. The Services are subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect Service Provider’s rights of redress before regulatory agencies. 3.3. The Service may not be compatible with security systems. Service Provider or its End-Users may be required to maintain a telephone connection through Service Provider’s local exchange carrier or that of its End-Users in order to use any alarm monitoring functions for any security system installed in the home or business of Service Provider or its End-Users. Service Provider and/or its End-Users are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
3.4. Service Provider acknowledges, and will require its End Users to acknowledge, that the Service may not be compatible with some broadband services. Service Provider acknowledges, and will require its End Users to acknowledge, that some providers of broadband service may provide modems that prevent the transmission of communications using the Services. DTEL does not warrant that the Services will be compatible with all broadband services and expressly disclaims any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
3.5. Service Provider and their End-Users connect to DTEL and ultimately our third party carriers via SIP signaling or another method determined by DTEL. Traffic or usage originated or terminated through the Service Provider account not supported by DTEL or which DTEL reasonably believes: (i) is fraudulent or unauthorized, (ii) will unreasonably interfere with Service Providers’ or other DTEL customers’ use of the network or the Services, or (iii) may jeopardize the integrity of the network, may be blocked by DTEL, in its sole discretion, and not delivered. Service Provider is responsible for all fees incurred for origination and termination Services provided through the Service Provider account provided by DTEL even if the Services are unauthorized by the Service Provider or fraudulent.
3.6. DTEL provides a function that allows End-Users to record individual telephone conversations. The laws regarding the notice and notification and other related requirements of recorded conversations vary by state to state, DTEL does not warrant that the function complies with any such notice and notification and other related requirements, and Service Provider and its End-Users are solely responsible for compliance with all local laws and regulations in the relevant jurisdiction when using this feature.
3.7. Service Provider acknowledges that, upon payment in full of the fees applicable to the Equipment hereunder, Service Provider will own the Equipment. DTEL and its third party vendors are not responsible for the malfunction, destruction, or loss of any Equipment except for the limited warranty provided for the Equipment. Service Provider agrees not to resell the Equipment without the express written consent of DTEL.
This Agreement will commence as of the Effective Date of the most recent Order Form, and, unless terminated earlier as set forth herein, will continue for the term as set forth on the Order Form (“Initial Term”). This Agreement will automatically renew for additional one (1) year terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”) unless a party gives the other party written notice of termination of this Agreement at least sixty (60) days prior to the then-current expiration date. Each Order Form (or Schedule attached thereto) will specify its specific term and renewal periods, if any.
1. Service Provider will pay the fees described in the Order Form and attached Schedules. Order Forms may be updated to include new Services and associated rates for such new Services. Service Provider shall pay DTEL the prevailing rates for the applicable Services at the time of the commencement of each Renewal Term, provided that DTEL shall provide Service Provider with notice of any change in the fees for such Services during such Renewal Term at least ninety (90) days prior to the commencement of any such Renewal Term. Where a particular rate for a DTEL Service is not identified in an Order Form, the rate applicable to that Service will be at DTEL’s standard rates, as published by DTEL from time to time. All Demand Labor will be billed at prevailing professional service rates in one (1) hour blocks. Travel and expenses will be billed at actual cost. 2. Service Provider will be invoiced monthly for the greater of (i) the fees for Services provided and provisioned by Service Provider, or (ii) the monthly minimum fees identified on the Order Form. Except for local number porting fees and 411 listings, non-recurring fees (as identified in Schedule A to the Order Form) may not be applied to the monthly minimum. The Total Initial Payment fee identified in the Order Form will be due upon signing. 3. Billing for the Services shall commence when the Service is installed or available for use or rendered by DTEL, and as set forth on the Order Form. Except as otherwise specified in the Order Form, (i) fees will be billed monthly for Services provisioned during the previous month with any monthly minimum payment or program fee, if any; and (ii) subject to Section 5(f) below, all invoices will be due and payable within ten (10) days of invoice date. All recurring fees will be satisfied by Service Provider by company check, electronic fund transfers or an additional payment form acceptable to DTEL (at DTEL’s sole discretion), and Service Provider shall complete and sign an EFT form supplied by DTEL. 4. Excluding taxes based on DTEL’s net income, Service Provider is responsible for all Taxes and Fees. Some Taxes and Fees are recovered through imposition of a percentage surcharge on the charges for Service. Charges for Service are exclusive of Taxes and Fees. Service Provider must present DTEL with evidence negating DTEL liability to pay or withhold certain Taxes and Fees, which DTEL may consider in its sole discretion. 5. Interest will accrue on past-due balances as of the date of delinquency at the lower of: (i) one and one-half percent (1.5%) per month, or (ii) the highest rate permitted by applicable law. If Services are discontinued due to nonpayment of fees and subsequently recommenced, a reconnection fee or deposit will apply, in addition to applicable interest. 6. If Service Provider disputes an invoice in good faith, Service Provider may withhold the disputed amount, not to exceed one month’s recurring fees for such Service, provided that Service Provider must: (a) notify DTEL within fifteen (15) days of any such invoice date, specifying the nature of the dispute or inaccuracy; and (b) pay any undisputed amounts as provided herein. Both Parties will in good faith investigate and attempt to promptly resolve any disputed invoices. Once resolved, Service Provider will promptly pay any amounts owed as a result of such resolution. 7. No set-off, deduction or cross-collateralization will be permitted hereunder. DTEL may require prepayment or additional security if Service Provider becomes insolvent, is unable to pay its debts when due, is the subject of a bankruptcy proceeding, or other circumstance, in DTEL’s sole discretion. 8. Service Provider will timely perform all obligations under this Agreement, waives any notification if the Service Provider is in default, and consents to any extensions or modifications granted to the Service Provider. 9. Credit Approval, Deposits.Service Provider will provide DTEL with credit information as requested on or before the Effective Date, and as subsequently requested by DTEL, from time to time. DTEL shall have the right to increase or decrease the Credit Limit by giving at least five (5) days prior written notice of such increase or decrease to Service Provider. Notwithstanding anything to the contrary in this Agreement, if DTEL determines at any given time that the Accrued Liability exceeds the then current Credit Limit, DTEL shall have the right to demand by written notice that Service Provider make an immediate payment to DTEL by wire transfer (or such other method as agreed by the Parties) of such amount required: (i) to reduce its aggregate Accrued Liability to less than the Credit Limit, and (ii) to ensure that the Credit Limit shall not be exceeded prior to the next invoice due date. Upon such demand, the demanded amount shall become immediately due and payable and Service Provider shall pay such amount promptly after its receipt of such notice. If Service Provider fails to remit such payment when due, DTEL shall have the right without further notice to suspend and/or terminate the Services. 9.1. If required by DTEL, Service Provider shall provide DTEL with a Deposit. DTEL may draw upon the Deposit at any time to recover any amounts due and unpaid, and upon notice to Service Provider, Service Provider shall immediately replenish the Deposit to its prior value. DTEL shall not waive any rights or remedies by drawing upon the Deposit to recover overdue or unpaid amounts. In the event that DTEL draws upon the Deposit, it may suspend the provision of Services until Service Provider replenishes the Deposit to its original value. If at any time Service Provider’s usage exceeds the Credit Limit or its payment history is or becomes unacceptable to DTEL, then DTEL may require Service Provider to provide, modify, or increase the amount or form of the Deposit. Service Provider shall have five (5) business days from the receipt of the requesting Party’s written request to comply with this request, and if it fails to do so, DTEL may immediately suspend the delivery of Services and/or terminate this Agreement without further notice or demand. When Service is discontinued per the terms of the Agreement, and Service Provider is in good standing with DTEL, the deposit will be credited to Customer’s account and the balance, if any, refunded. 10. If changes in applicable law, regulation, rule or order materially affect delivery of Service, the Parties will negotiate appropriate changes to this Agreement. If the Parties cannot reach agreement within thirty (30) days after DTEL’s notice to Service Provider requesting such a renegotiation, DTEL may, on a prospective basis after such thirty (30) day period, pass any increased delivery costs on to Service Provider or eliminate Services impacted by the change in law, regulation, rule or order.
1. During the course of this Agreement, either Party may receive or have access to Confidential Information of the other. Each Party will cause its affiliates to comply with the obligations of this Section 6, and each Party agrees that it is responsible for its affiliates’ compliance with this Section 6. Actions or omissions by a Party’s affiliate, that if taken by said Party would constitute a breach of this Section 6, will be considered actions or omissions of said Party. The Recipient acknowledges the economic value of the Disclosing Party’s Confidential Information. The Recipient therefore, will: (i) use the Confidential Information only in connection with the Recipient’s performance of its obligations or in exercising its rights under this Agreement; (ii) restrict disclosure of the Confidential Information to employees of the Recipient and its affiliates with a “Need to Know” and not disclose it to any other person or entity without the prior written consent of the Disclosing Party; (iii) advise those employees who have access to the Confidential Information of their obligations with respect thereto; (iv) treat the Confidential Information with at least the same degree of care to avoid disclosure to any third party as is used by Recipient with respect to its own information of like importance which is to be kept secret; and (v) copy the Confidential Information only as necessary for those employees who are entitled to receive it and ensure that all confidentiality notices are reproduced in full on such copies. 2. For the purposes of this Section 6 only, “employee” includes third parties retained by the Parties for temporary consultative, administrative, clerical, programming or related Services support. 3. If Recipient is required by law or regulation to disclose Confidential Information of the Disclosing Party, Recipient may do so, but only to the extent and for the purposes of such required disclosure, and only if the Recipient first promptly notifies the Disclosing Party of the need for such disclosure and allows the Disclosing Party a reasonable opportunity to seek an appropriate protective order. 4. Confidential Information, including copies, will be deemed the property of the Disclosing Party. The Recipient will, within twenty (20) days of a written request by the Disclosing Party return all Confidential Information (or any designated portion thereof), including all copies thereof, to the Disclosing Party or if so directed by the Disclosing Party, destroy such Confidential Information. The Recipient will also, within ten (10) days of a written request by the Disclosing Party, certify in writing that it has satisfied its obligations under this Section.
7. DISCLAIMER OF WARRANTY.
DTEL MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR ITS PROVISION OF THE SERVICES, OR ANY DEMAND LABOR, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR NONINFRINGEMENT, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT. FURTHERMORE, DTEL EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE SERVICES OR RELATED SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE. UNLESS SPECIFICALLY IDENTIFIED IN ANY SERVICE LEVEL AGREEMENT, DTEL MAKES NO WARRANTY OR REPRESENTATION REGARDING THE AVAILABILITY OF THE SERVICES.
8. LIMITATION OF LIABILITY.
1. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING COST OF COVER, ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT. IN THE EVENT THAT THIS DISCLAIMER OF LIABILITY IS NOT FULLY ENFORCED, EACH PARTY’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIM RELATING TO SERVICES, ANY DEMAND LABOR, OR THIS AGREEMENT WILL BE LIMITED TO AN AMOUNT EQUAL TO THE SUM OF THE FEES PAID BY SERVICE PROVIDER FOR THE APPLICABLE SERVICES IN THE ONE MONTH IMMEDIATELY PRECEDING THE DATE OF THE RELEVANT CLAIM. 2. THE FOREGOING LIMITATIONS OF LIABILITY IN SECTION 8(a) ABOVE WILL NOT APPLY TO: (I) CLAIMS RELATING TO VIOLATIONS OF DTEL’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING BUT NOT LIMITED TO SOFTWARE); (II) SERVICE PROVIDER’S OBLIGATIONS TO PAY DTEL THE FEES APPLICABLE TO THE SERVICES, OR (III) SERVICE PROVIDER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. ALL OF THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY WHETHER THE APPLICABLE CLAIM IS BASED ON LOST GOODWILL, LOST PROFITS, LOSS OF USE OR PERFORMANCE OF ANY PRODUCTS, SERVICES, OR OTHER PROPERTY, LOSS OR IMPAIRMENT OF DATA OR SOFTWARE, OR OTHERWISE, AND WHETHER THE APPLICABLE CLAIM ARISES OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, CONTRACT, TORT, (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE REASONABLY FORESEEABLE.
1. Service Provider hereby agrees to indemnify, defend and hold harmless DTEL, and its respective affiliates, subsidiaries, directors, officers, agents, suppliers, employees and assigns (collectively, “Indemnified Parties”), from and against any Losses arising out of or relating to: (i) Service Provider or Service Provider’s customers’ or End-Users’ use of Services; (ii) the content of Service Provider or Service Provider’s customers’ or End-Users’ data and/or any third party information used, maintained or stored in connection with the Services; (iii) Service Provider or Service Provider’s customers’ or End-Users’ use of 911 or E911 services, including but not limited to Service Provider’s management of and data entry into the platform provided by DTEL; (iv) the breach by Service Provider of any representation, covenant or warranty contained herein; (v) violation of any law by Service Provider or any third party arising out of or relating to Service Provider’s actions; (vi) the modification or unauthorized use by Service Provider or Service Provider’s customers’ or End-Users’ or distribution of the Services or DTEL’s Intellectual Property; or (vii) any violation of law in which Service Provider allegedly engaged. 2. Subject to the limitations set forth in Section 8, DTEL shall, during the Term of this Agreement, defend and indemnify, at its expense, any claim or suit brought against Service Provider alleging that Software infringes a U.S. trademark, patent or copyright and shall pay all costs and damages finally awarded, provided that DTEL is given prompt written notice of such claim or suit and is given Service Provider’s reasonable assistance and the sole authority to defend or settle the claim. If use of the Software under the terms of this Agreement is, or in DTEL opinion is likely to be enjoined due to the type of infringement specified above, then DTEL will, at its sole option and expense obtain for Service Provider the right to continue using the Software, or replace or modify the Software so that it becomes non-infringing. DTEL shall have no liability for actual or alleged infringement based upon the use of the Software in combination with other products, devices or software not furnished by DTEL, use not in compliance with DTEL’s specifications, or modifications made to the Software if the claim or suit of infringement would not have occurred but for such combination or modifications of the Software. DTEL disclaims all other liability for patent, trade secret and copyright and other intellectual property rights infringement, including any incidental, special or consequential damages. With respect to any claims or actions relating to infringement of intellectual property rights, the remedies set forth in this section shall be the sole and exclusive remedies to which Service Provider is entitled.
In addition to any other rights at law or in equity, DTEL may immediately and without notice, suspend the delivery of Services and/or terminate this Agreement, in whole or in part as it applies to specific Order Form(s) or to specific End-Users, in the event that (i) Service Provider fails to provide a Deposit as required in this Agreement; (ii) Service Provider exceeds the Credit Limit; (iii) Service Provider fails to make payment when due; (iv) Service Provider becomes insolvent or bankrupt or ceases paying its debts generally as they mature; or (v) Service Provider or particular End-Users of Service Provider commit a breach of or otherwise violate any of the terms of this Agreement, including without limitation, the Acceptable Use Policy, or applicable law. If we believe that you or your End-Users have used the Service for an unlawful purpose, we may forward the relevant communication and other information, including your identity or that of your End-User, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding any such communications and information to these authorities. In addition, DTEL will provide information in response to law enforcement requests, subpoenas, and 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. In the event that DTEL is the defaulting Party on a term of this Agreement, DTEL shall have the opportunity to cure the alleged breach for thirty (30) days (or more if DTEL notifies Service Provider that DTEL has commenced cure activities and continues to use good faith efforts to cure the default). On termination, Service Provider will pay as liquidated damages and not as a penalty, and in lieu of all other damages, the sum of all remaining recurring Service fees (as well as any past due balances) due under the remaining term(s) of the affected Order Forms. Upon the termination of the Service by you or your End-Users, we may, in our sole discretion, release to your or your End-Users’ new service provider the telephone number that you or your End-User ported (transferred or moved over) to us from your previous service provider and used in connection with the Service if (i) such new service provider is able to accept such number; (ii) your account or that of your End-User has been properly terminated; (iii) your account or that of your End-User is completely current, including payment for all charges and applicable termination fees; and (iv) you or your End-User request the transfer upon account termination.
11. INTELLECTUAL PROPERTY.
1. The Service, and any firmware or Software used to provide the Service or provided to you in conjunction with providing the Service, 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 ToS grants you the right or license to use any of our Marks. 2. 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 other than a 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 ToS. We reserve the right to prohibit the use of any interface device that we do not approve. You hereby represent and warrant that you and your End-Users possess all required rights, including Software and/or firmware licenses, to use any interface device that we have not provided to you or your End-Users. In addition, you shall indemnify and hold us harmless against any and all liability arising out of your use, or that of your End-Users, of such interface device with the Service. Neither you nor your End-Users shall reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or Software. 3. DTEL has and shall retain full and exclusive ownership of all intellectual property rights associated with the DTEL IP and any work product developed in connection with the performance of the Demand Labor. Except as expressly provided in an Order Form, Service Provider receives no right, title or interest in or license to use any DTEL IP and any work product developed in connection with the performance of the Demand Labor. However, Service Provider does receive a non-exclusive, nontransferable, terminable license to use such of the DTEL IP that is necessary for Service Provider to exercise its rights hereunder, but solely in connection with and only for the term of the applicable Service and subject to the terms of any applicable Order Form. Service Provider will not allow access to DTEL IP, including without limitation, software and systems, by anybody other than Service Provider’s employees and subcontractors who (i) are bound by law or written agreement to comply with Service Provider’s duties under this Agreement with respect to DTEL IP and Confidential Information, and (ii) require such access to assist Service Provider in its permitted use thereof. Service Provider will not directly or indirectly reverse engineer, decompile, disassemble or copy any DTEL IP. Service Provider will return all DTEL IP to DTEL at the conclusion of the applicable Service. Service Provider will cooperate to take such actions reasonably requested to vest ownership of DTEL IP in DTEL.
12. ON-SITE SERVICES.
If DTEL personnel perform Services on Service Provider’s premises: (i) Service Providerwill provide all facilities, access, furnishings, equipment, software, documentation, passwords, and data necessary to perform the Services; (ii) Service Provider will maintain adequate security, safety, utilities, and environmental standards, consistent with industry standards and its regular practices; (iii) while on Service Provider’s premises, DTEL personnel will comply with Service Provider’s standard rules and regulations consistently applied and communicated to DTEL in advance; (iv) except as otherwise provided in an Order Form, Service Provider will reimburse DTEL for its reasonable out-of-pocket expenses incurred in connection with the Services, including travel related costs including, but not limited to, coach class travel, business class lodging, automobile rental, and meals.
Service Provider will maintain during the term of this Agreement: (1) Workers’ Compensation insurance as prescribed by the law of the state or nation in which the work is performed; (2) employer’s liability insurance as prescribed by the law of the state or nation in which the work is performed with limits of at least $500,000 for each occurrence; (3) comprehensive automobile liability insurance if the use of motor vehicles is required, with limits of at least $300,000 combined single limit for bodily injury and property damage for each occurrence; (4) Commercial General Liability insurance, including Blanket Contractual Liability and Broad Form Property Damage, with limits of at least $1,000,000 combined single limit for bodily injury and property damage for each occurrence; and (5) excess or umbrella liability at a limit of no less than $1,000,000 per occurrence and aggregate in excess of the underlying coverage required above. On written request, Service Provider will furnish certificates evidencing the foregoing insurance. At least thirty (30) days prior to any cancellation or termination of Service Provider policy, Service Provider will notify DTEL in writing of such cancellation or termination.
Last Updated 07/18/18