FeatureTel, LLC - BASIC SERVICES AGREEMENT (Terms and Conditions)
This Basic Services Agreement is entered into between FEATURETEL, LLC (the “Provider”) and (“Customer”). Customer hereby orders and Provider agrees to furnish the communication services (“Services”) and certain equipment (“Equipment”) as defined and set out on the attached Schedule(s) subject to the terms and conditions herein and therein.
1. Term. Unless terminated in accordance with Section 13, the Provider shall provide the Services to Customer for ___ months (the “Initial Term”) commencing upon the activation of the Services. The term shall automatically renew for successive periods of 12 months unless terminated by either Party at least thirty (30) days prior to the then current date for termination. The Provider reserves the right to change its rates for any renewal term by notifying Customer at least 60 days in advance of the effective date of such rate change. Specific Services may commence at different times pursuant to Modification Orders, but the dates for automatic renewal and/or termination will coincide. Customer Satisfaction Guarantee: For the first 60 days of this contract period, given written notice, Customer may terminate this agreement for any reason. Equipment provided by Provider to Customer may be repurchased by Provider and may be subject to a 10% restocking fee.
2. Fees. Customer shall pay the equipment, setup, and installation fees set forth on Customer Order Schedule 2 upon the signing of this agreement. Monthly billing for recurring fees in the amount set forth on Customer Order Schedule 1 and any subsequent Modification Order Schedule(s) shall commence upon the date of activation of the Services, prorated for any partial monthly Services. Customer will be invoiced monthly for all amounts due and owing to the Provider. All payments are due and payable as of the billing date, or if not received by the billing date, upon receipt. All payments required by this Agreement are exclusive of any national, state, municipal or other governmental excise, sales, value-added and occupational taxes and other government-mandated levies, for which Customer shall be responsible (“Tax and Regulatory Recovery Fees”), and will pay in full other than taxes based on the Provider’s net income. Customer will be deemed to be in default hereunder if payment is not received within thirty (30) days after receipt of invoice, justifying suspension of the Services and will be sufficient cause for termination of this Agreement by the Provider. In addition to its other remedies, upon Customer’s failure to pay within thirty (30) days, the Provider may charge Customer the greater of one and one-half percent (1.5%) interest per month or the maximum rate of interest allowable under applicable law. In the event Customer moves the location of any Services, the Provider reserves the right to charge Customer an additional installation fee.
3. Definitions. In addition to other terms defined in this Agreement, the following definitions shall apply where applicable: (a) “Customer Content” means information or data, including account data that is provided by Customer and posted on or accessed through Provider’s network; (b) “Internet” means a worldwide series of interconnected computer networks which communicate by a shared network communication protocol known as Transmission Control Protocol/Internet Protocol or any successor or alternative protocol; (c) “Customer Order Schedule” means a description of a Service to be provided to Customer with the applicable limitations, representations, and conditions set forth which shall be deemed to be a part of and addendum to this Basic Services Agreement; and (d) “Services” means the applications and features provided by Provider to Customer as set out on the Customer Order Schedules.
4. Services. Provider shall furnish Customer each Service described on the attached Customer Order Schedules and any subsequent Modification Order Schedule, for the price, charges, conditions, rates and on the terms as set forth thereon. The Parties acknowledge that the Provider’s obligation to furnish the Services is contingent upon its obtaining and/or maintaining all of the requisite licenses and consents to provide the Services and the Customer’s credit approved status determined by the Provider in its sole and reasonable discretion prior to providing the Services or any additional Services or connections subsequently requested by Customer. In addition to this Basic Services Agreement, the Parties may enter into one or more additional Customer Orders and/or Modification Order each of which shall provide a general description of the Services to be provided Customer. Each Customer Order will be effective when signed by both Provider and Customer, unless otherwise stated therein. All conditions and terms set forth in this Basic Services Agreement, including the limited warranty, confidentiality, and limitation of remedies are automatically incorporated in, and deemed a part of, each such Customer Order and Modification Order unless otherwise stated. The terms and conditions of this Agreement as applied to and incorporated in each separate Customer Order Schedule shall be construed to be a separate contract for each separate Customer Order Schedule whether contemporaneously or subsequently executed. 4.1. Basic Services. Provider shall provide Customer with the basic services that are described on Customer Order Schedule 1 in accordance with the specifications and at the fee set forth thereon subject to all the terms and conditions contained herein. 4.2. Additional Services. Provider and Customer agree that any additional services (“Additional Services”) to be provided by Provider to Customer shall be: (i) described in Customer Order Schedules which are executed from time to time by both Parties and annexed to this Agreement (the “Attachments”); (ii) in accordance with the provisions of this Agreement, each Amendment shall contain a description of the Services to be provided by Provider, criteria, any applicable warranties for the Services, specifications, and functionality; and (iii) regardless of date of execution, any Customer Order Schedules between the Parties shall and hereby does incorporate all the terms and conditions of this Basic Services Agreement unless specifically stated otherwise in writing. 4.3. Use of Service . Customer agrees that the Provider’s unlimited calling plans do not confer the right to use the Service for auto-dialing, continuous or extensive call forwarding, telemarketing, outbound call centers, fax broadcasting or fax blasting. Provider reserves the right to modify the Service if Provider reasonably determines that Customer’s Service is being used for any of the aforementioned activities. 4.4. Prohibited Uses: Customer agrees to use the Service and devices only for lawful purposes. Customer is liable for any and all use of the Service and/or Device by any person making use of the Service or Device provided to Customer and agrees to indemnify and hold harmless Provider against any and all liability for any such use that fails to comply with this Section 4.4. 4.5. Service Levels: Internet connectivity from Data Center: Availability 24x7 with the exception of scheduled maintenance times. Telephony connectivity from Data Center: Availability 24x7 with the exception of scheduled maintenance times. Telephony connectivity may be routed across emergency connections if network connectivity is lost while performing network maintenance. Penalty for unscheduled loss of service is 1/30th of the monthly recurring service charge per day of missed Service Level Availability (“SLA”) Total amount of Non-Performance Penalties during a given month may not exceed the amount of one month's recurring service charges. This SLA does not cover loss of service due to problems caused by Customer’s facilities or the third-party provided connections. 4.6. Scheduled Maintenance: FeatureTel will use commercially reasonable efforts to provide Customer 1 to 5 days notice of any scheduled maintenance that, in its reasonable opinion, has a substantial likelihood of affecting the Service. Scheduled Maintenance will normally occur on Weekends, or a Weeknight during off-peak hours between midnight and 4am. 4.7. Unscheduled Maintenance: In the event of an emergency situation, FeatureTel will have the right to perform maintenance and/or perform restoration services, including but not limited to actions to restore continuity to providers Cabling, restore dysfunctional power and or ancillary equipment, or correction of any potential jeopardy conditions. 4.8. Unlimited Long Distance: To the extent that this agreement includes unlimited long distance calling: Unlimited Long Distance plan not available to customers with PBX, PBX-like equipment, conference calling, and auto dialers. Calls must be dialed 1+ domestic telephone number for the call to be included without an additional charge and applies only to domestic outbound voice calls made from the business location. Calls to online service, broadcast, analog fax transmission & data usage traffic are prohibited. If usage exceeds by 10 times the average usage of all similarly-situated customers on the plan in the customer's state, the Parties will negotiate in good faith to identify an appropriate plan for Customer. Additional state-mandated charges may apply on certain calling routes.. Long Distance services & rates subject to terms and conditions contained in the Agreement. Rates are subject to change solely as expressly set forth in this Agreement. Taxes, fees and other charges, including Universal Service Fund, apply.
5. Provider Equipment. To the extent that this Agreement includes the installation, management and maintenance of any equipment owned by Provider at each location shown thereon (the “Equipment”), the Parties agree as follows: 5.1. As part of the Services, to the extent Provider shall furnish telecommunication and digital transmission connections and links, switches, routers, telephones, and other hardware, they shall be considered Equipment hereunder. Customer acknowledges that the Equipment may be owned by Provider and Customer shall take such actions as are directed by Provider to protect Provider’s interest in the Equipment and shall keep the Equipment free and clear from all liens, claims and encumbrances. Customer acknowledges that Provider may take whatever steps are necessary to perfect and protect its interest in the Equipment, including, but not limited to the filing of a Uniform Commercial Code financing statement, with respect to which Customer hereby grants to Provider a limited power of attorney to execute any such document on Customer’s behalf. 5.2. Customer bears the entire risk of loss, theft, destruction or damage to the Equipment, and Customer shall maintain insurance covering each piece of Equipment in an amount equal to the replacement value thereof with an insurer acceptable in the sole discretion of the Provider which shall be named as a beneficiary of insurance proceeds in the event of loss, theft, destruction or damage of the Equipment on the certificate of insurance which shall be contemporaneously provided to Provider with the execution of this Agreement or applicable Customer Order Schedule. 5.3. Customer shall not move, configure, reconfigure, program or otherwise affect the Equipment in any manner without the prior written consent of Provider 5.4. PROVIDER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, ITS MERCHANTABILITY, OR ITS FITNESS FOR A PARTICULAR PURPOSE. 5.5. Provider shall not be liable to Customer or any other person for direct, indirect, special, incidental or consequential damages arising from Customer’s use of the Equipment or for damages based on strict or absolute tort liability or Provider’s negligence. 5.6. Customer hereby acknowledges that any manufacturer’s or supplier’s warranties with respect to the Equipment are passed on to Customer by Provider in good operating condition to the extent assignable; and that Provider shall be responsible for maintaining the Equipment. 5.7. At the end of the term of this Agreement, Customer shall return the Equipment to Provider, at Customer’s expense. 5.8. Customer shall provide appropriate equipment space, environment, ducting and electrical power to enable the Equipment to be installed and maintained and Provider to provide the Services. 5.9. Customer hereby agrees to comply with the conditions of any license and/or warranty of the Equipment supplied by Provider.
6. Content. 6.1. Proprietary Rights of Customer. As between Customer and Provider, any Customer Content and any other information, data, or material originated or disseminated by Customer shall remain the sole and exclusive property of Customer, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. Nothing in this Agreement shall be construed to grant Provider any ownership right in, or license to, the Customer Content provided by Customer to Provider. 6.2. Proprietary Rights of Provider. All materials, including, but not limited to, any computer software (in object code and source code form), data or information developed or provided by Provider or its suppliers under this Agreement, and any know-how, methodologies, equipment, or processes used by Provider to provide the Services to Customer, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively “Provider Materials”) shall remain the sole and exclusive property of Provider or its suppliers. To the extent, if any, that ownership of the Provider Materials does not automatically vest in Provider by virtue of this Agreement or otherwise, Customer hereby transfers and assigns to Provider all rights, title and interest which Customer may have in and to the Provider Materials. Customer acknowledges and agrees that Provider is in the business of providing communication services and carrier system services, including Internet services extending to hosting Web sites, and that Provider shall have the right to provide to third parties services which are the same or similar to the Services, and to use or otherwise exploit any Provider Materials in providing such Services. 6.3. Privacy and Limitation on Customer Content. The Provider reserves the right to reasonably monitor from time to time, Customer’s activity solely to the extent necessary to determine Customer’s compliance with the terms of this Agreement, and Customer hereby consents. The Parties agrees such access does not create a duty on Provider to police, monitor, or exert editorial control over content or use on the Services. Customer assumes responsibility for ensuring that the Customer Content does not infringe or violate any right of any third party. 6.4. Internet Connection and Privacy. Customer acknowledges that use of, or connection to, the Internet is inherently insecure and that connection to the Internet provides opportunity for unauthorized access by a third party to Customer’s computer systems, networks, and any and all information stored therein. ALL INFORMATION TRANSMITTED AND RECEIVED THROUGH THE INTERNET CANNOT BE EXPECTED TO REMAIN CONFIDENTIAL AND PROVIDER CANNOT AND WILL NOT WARRANT THE PRIVACY, SECURITY, AUTHENTICITY, AND NON-CORRUPTION OF ANY INFORMATION SO TRANSMITTED, OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. PROVIDER SHALL NOT BE RESPONSIBLE FOR ANY ADVERSE CONSEQUENCES WHATSOEVER OF CUSTOMER’S CONNECTION TO OR USE OF THE INTERNET, AND PROVIDER SHALL NOT BE RESPONSIBLE FOR ANY USE BY CUSTOMER OF CUSTOMER’S INTERNET CONNECTION IN VIOLATION OF ANY LAW, RULE, OR REGULATION OR ANY VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANOTHER. 6.5. Content Backup. Customer shall maintain reasonable back-up arrangements and equipment in order to maintain the Services in the event of the failure of Provider’s Equipment or software. Customer shall regularly back-up its Customer Content to protect against data loss or content failure regardless of fault.
7. Customer Representations and Warranties. Customer represents and warrants that: (a) Customer has the power and authority to enter into and perform its obligations under this Agreement; (b) Customer Content does not infringe on or violate any applicable law, regulation or right of a third-party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third-party right; (c) should Customer receive notice of a claim regarding the Services, to the extent such claim is relevant to Provider, Customer shall promptly provide Provider with written notice of such claim; (d) Customer represents that, during the term of this Agreement, it possesses or will obtain the hardware, software, cabling, and network (“Customer’s System”) to accommodate the Equipment and Services provided by Provider, and acknowledges that the Equipment and Services provided by Provider may perform at different ranges depending on the Customer’s System; and (e) Customer represents that, during the term of this Agreement, it possesses or will obtain an uninterruptible power source for Customer’s System to avail itself of the uninterrupted supply of Equipment and Services to the extent offered by Provider.
8. E911 Statement. As an 'Interconnected VoIP Service Provider', FeatureTel is required by the Federal Communications Commission to advise Customer on any potential "circumstances under which E911 service may not be available through the interconnected VoIP service or may be in some way limited by comparison to traditional E911 service." Execution of this agreement serves as an acknowledgement and understanding by Customer of any 911 limitations. E911, or Enhanced 911 services are provided as a part of your FeatureTel service unless otherwise advised. The E911 service is dependent upon the connection to FeatureTel via the public Internet or otherwise utilized telecommunications methods. In addition, the E911 service is dependent upon the telephone instrument. There are certain circumstances under which 911 calling will not function properly including:
* Failure of Data Connection: Failure of third party broadband connection – either a connection to the public internet or otherwise utilized telecommunications methods.
* Failure of Equipment: Failure of equipment including the telephone instrument, data switches, routers, and integrates access devices.
* Power Outage: Power outage or other electrical failure.
* Incorrect Address: Failure of Customer to provide accurate location information for each telephone instrument.
* Moving the voice device to a location other than the Customer’s principal place of business on record with Provider.
* Use of a non-native number: Using the telephone assigned with a particular area code and telephone number in a geographic location that uses a different area code and telephone number as associated with traditional telephone service.
9. Confidentiality. Each Party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other Party, including, but not limited to, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, usage habits, advertising relationships, projections, client lists, employee lists and information, any personally identifiable information (whether related to health, finances or otherwise) owned or held by a Party, and marketing data (“Confidential Information”). Confidential Information shall not include information that the receiving Party can demonstrate: (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving Party; (b) was known to the receiving Party as of the time of its disclosure; (c) is independently developed by the receiving Party; or (d) is subsequently learned from a third-party not under a confidentiality obligation to the providing Party. Except as provided for in this Agreement, each Party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Each Party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each Party and its employees shall survive the expiration or termination of this Agreement for a period of five (5) years.
10. Limited Warranty. EXCEPT FOR THOSE EXPRESS WARRANTIES LISTED ON THE CUSTOMER ORDER SCHEDULE(S) FOR SERVICES, THE PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; THIS INCLUDES LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTION CAUSED BY THIRD PARTIES. USE OF ANY INFORMATION OBTAINED BY THE PROVIDER’S SERVICES IS AT YOUR OWN RISK. THE PROVIDER SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS SERVICES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED “AS IS, AS AVAILABLE” WITHOUT ANY WARRANTY OF THE QUALITY, PERFORMANCE OR FUNCTIONALITY OF THE SERVICES. CUSTOMER ACKNOWLEDGES THAT SERVICES MAY BE TEMPORARILY UNAVAILABLE FOR A NUMBER OF REASONS, INCLUDING BUT NOT LIMITED TO CAPACITY CONSTRAINTS, TRANSMISSION LIMITATIONS, AND MAY BE TEMORARILY INTERRUPTED OR CURTAILED DUE TO EQUIPMENT MODIFICATIONS, UPGRADES, RELOCATIONS, REPAIRS, AND SIMILAR ACTIVITIES NECESSARY FOR THE REPAIR OR IMPROVED OPERATION OF THE SERVICES.
11. Limitation of Liability. PROVIDER SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NEITHER PARTY SHALL HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOST PROFITS OR REVENUES, LOSS OF USE, LOST OR DAMAGED DATA, REPORTS, DOCUMENTATION OR SECURITY OR SIMILAR ECONOMIC LOSS, OR FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF EACH PARTY TO THE OTHER PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID OR PAYABLE TO PROVIDER BY CUSTOMER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION SHALL NOT APPLY TO CAUSES OF ACTION BAD FAITH BREACH OF CONTRACT, BREACH OF WARRANTY, GROSS NEGLIGENCE, FRAUD AND MISREPRESENTATION. IN ADDITION TO THE RIGHTS AND REMEDIES SET FORTH IN SECTION 4.5, IN THE EVENT OF TELEPHONY SERVICE INTERRUPTION DUE TO PROVIDER’S ERRORS, OMISSIONS, DELAYS, OR DEFECTS, CUSTOMER’S REMEDY SHALL BE AN ABATEMENT OF THE CHARGES PAYABLE BY CUSTOMER FOR THE PERIOD DURING WHICH THE SERVICES WERE AFFECTED BY PROVIDER’S ERROR, OMISSION, DELAY OR DEFECT . IN NO CASE SHALL LIABILITY FOR INTERRUPTION EXCEED THE AMOUNT ACTUALLY PAID TO PROVIDER BY CUSTOMER UNDER THIS AGREEMENT DURING THE PRIOR 30 DAYS..
12. Termination of Service(s). In addition to any other remedy available, Provider may immediately terminate this Service Agreement, in whole or in part, in the event of a breach by Customer which includes, but is not limited to the following: a) non-payment of amounts due and owing to Provider; b) Customer’s unlawful or fraudulent use of Service(s); c) Customer provides false or misleading information; d) any material default of this Service Agreement; e) a violation of any law, rule or regulation of any governing authority having jurisdiction over the service; f) a violation giving rise to a right of termination as set forth in Provider’s applicable federal or state tariffs; or g) the Service(s) being provided to Customer are no longer economically or technically feasible. Upon such termination, Customer will immediately: i) cease utilizing the Service(s); ii) pay Provider for all charges incurred by Customer, including taxes and surcharges, through the date such Service(s) is discontinued; and iii) except for (g) above, pay any applicable termination liability.
13. Notice of Termination of Service Agreement. In the event Customer intends to terminate a particular Service or all Service(s) governed by this Service Agreement prior to expiration of the term set forth herein, if longer than a month to month term, Customer will provide Provider three (3) months written notice. In the event that Customer does not so notify Provider, Customer will owe Provider an additional three (3) months of charges in addition to the termination liability outlined below.
14. Termination Liability. If Customer terminates Service for its own convenience, or Provider terminates for cause as set forth above, prior to the fulfillment of the term set forth herein, then a termination liability will be due from Customer to Provider; which Customer acknowledges is a reasonable approximation of damages and does not represent a penalty. The termination liability will include: (a) any previously waived charges for the Services(s); plus (b) a one-time charge calculated as follows: 14.1. (i) for Service(s) disconnected in the first year of service of the Initial Term or any Renewal Term, all remaining recurring charges for such first year, plus 50% of all recurring charges for the remainder of the Initial Term or Renewal Term; or 14.2. (ii) for Service(s) disconnected after the first year of service, 50% of all recurring charges for the remainder of the Initial Term or Renewal Term. 15. Indemnification. Customer shall indemnify the Provider, its affiliates, officers, directors, licensees and licensors from any and all claims and expenses, including, without limitation, reasonable attorney’s fees arising from the breach of any provision of this Agreement or asserted by third parties against the Provider arising from Customer’s use of the Equipment or the Services or from any action or inaction by Customer.
16. Governing Law. This Agreement is deemed to be entered into in the State of North Carolina and shall not become a binding obligation of the Provider until it has been executed by one of its officers. The Parties agree that any dispute arising under this Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina.
17. Assignment. Provider may assign this Agreement without Customer’s prior consent, and all of the Provider’s rights, title, obligation and interest herein shall inure to the benefit of such assignee, its successors and assigns. Notwithstanding the preceding sentence, either Party may assign this Agreement, without the prior written consent of the other Party, in connection with the merger, transfer of assets, sale of stock, or change in partnership. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.
18. Confidentiality of Terms. Neither Party shall disclose any of the terms and conditions of this Agreement without the prior written consent of the other; provided, however, in any of its sales or marketing materials Provider may refer to Customer as its customer along with descriptions of services provided or events related to the services..
19. Amendment. This Agreement may be modified only by a written instrument executed by each Party.
20. Notice. Any notice required to be given hereunder shall be delivered to the address in the signature block below in writing and shall be deemed to have been delivered when: (i) received via the United States mail with adequate postage affixed, as demonstrated by registered or certified mail, return receipt requested; (ii) delivered via a national overnight courier service or courier service and addressed to the persons set forth in the signature block hereto; or (iii) by facsimile to such other address as either Party may provide to the other in accordance with these notice provisions.
21. Force Majeure. Except for the payment of fees by Customer, if the performance of any part of this Agreement by either Party is reasonably prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the reasonable control of either Party, that Party shall be excused from such to the extent that, and for the time that, it is prevented, hindered or delayed by such causes.
22. Entire Agreement. This Agreement and the applicable Customer Order Schedule(s) constitute the entire agreement between Customer and Provider with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement. The terms and conditions of this Agreement, as applied to and incorporated in each separate Customer Order Schedule shall be construed to be a separate contract for each separate Customer Order Schedule.
23. Waiver Clause. The waiver or failure of either Party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
24. Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
25. Headings. The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
26. Survival. All provisions of this Agreement relating to Customer Content, warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
27. Independent Contractors. Provider and its personnel, in performance of this Agreement, are acting as independent contractors and not employees or agents of Customer.
28. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original for all purposes hereof.
