Master Terms and Conditions
For the Supply of Network Services
These Master Terms and Conditions for the supply of Network Services (“Terms and Conditions”) shall apply to the purchase of Services(s) from Unitas Global Inc., a Delaware corporation, (“Unitas”) which expression shall include its majority-owned affiliates or subsidiaries, with its principal place of business located at 905 W Van Buren St Suite 605, Chicago, IL 60607, which expression shall include its Affiliates. A party purchasing such Service(s) shall herein be referred to as “Customer” and shall be bound by these Terms and Conditions.
These Terms and Conditions are available on Unitas’ Website, which is accessible by Customer and, may be modified by Unitas at any time without notice. Unitas will update changes to these Terms and Conditions on its Website. Such changes shall become effective and binding on Customer immediately upon posting of the modified terms on Unitas’ Website. In no event will any change be deemed to affect any existing manually executed MSA between Unitas and Customer.
Article I. Definitions
Activation Date means the date when the Customer is first given access to any of the applicable Product(s) or Service(s) more fully described in the applicable Service Order Form or Supplement thereto and that Customer has either paid all and/or Prepayments required for right to use the applicable Product(s) or Service(s) or Unitas Global has agreed to provide access to such Product(s) or Service(s) notwithstanding any applicable NRCs and/or Prepayments remain unpaid. For avoidance of doubt the Activation Date does not mean the date of first use by Customer or Customer’s End-Users of such Product(s) or Service(s).
Affiliate means any entity that controls, is controlled by, or is under common control of either Unitas or Customer.
Available means that all necessary equipment for Service has been installed and the Service delivered to the Point of Termination performs substantially in accordance with industry specifications.
AUP means Unitas’s Acceptable Use Policy. Compliance with this policy is a mandatory requirement for all users of the Services. The AUP is found at www.unitasglobal.com/acceptable-use-policy/.
Billing Start Date means the date that monthly recurring charges begin accruing.
Carrier means a common carrier or other telecommunications carrier.
Circuit means a telecommunications transit medium or facility connecting two or more Customer or End User locations.
Network Services means the supply of telecommunications or internet circuits to Customers and their End-Users.
Customer means any person, group, entity, or party that orders, purchases, or uses Service(s) from Unitas for itself or an End User.
Customer Not Ready is defined in Sec 2.01 (d) 5.
Emergency Maintenance means any maintenance that is necessary to preserve or protect the integrity of Services or facilities, or maintenance which if not performed promptly, could result in Service degradation or loss of Service to Customer, its End Users or other users of Unitas network.
End User means any customer of Customer or its Affiliates that is receiving or using Service. An End User may be a person or entity to whom Customer provides telecommunication or related services that utilizes, in whole or in part, Service provided under the terms of these Terms and Conditions.
Firm Order Commitment (FOC) means the communication that Unitas sends to Customer indicating the estimated delivery date.
Governmental Charges means the charges by government, whether retroactive or prospective, that Unitas is required to collect from Customer in connection with its furnishing Service. The charges result from the application, interpretation, or enforcement of existing, new or revised laws or regulations, and actions taken by federal, state, local or foreign regulatory authorities that directly or indirectly impose costs on Unitas.
Monthly Recurring Charges means the recurring charges for Services under these Terms and Conditions.
MSA means any existing, unexpired Master Service Agreement negotiated and executed by and between Unitas and a customer.
Non-Recurring Charges means installation fee(s) and other one-time charges for Service under these Terms and Conditions.
NOR means Notice of Receipt of a Connectivity order, which is the email receipt that Unitas submits to Customer indicating that it has received an SOF.
Order Confirmation means the notification that Unitas submits to Customer indicating that it has accepted a SOF and the date of the same is sometimes referred to as the “Order Confirmation Date.”
Order Completion Notice shall mean a written notice from Unitas that the Service ordered has been installed by Unitas (or its designees) pursuant to the SOF, and has been tested and is functioning properly.
Point of Termination means the location where Unitas’ Service responsibilities end and Customer or End User’s responsibilities begin. The Point of Termination is the interface between Customer and Unitas, whether at Unitas’ point of presence (the specific location within a local access transport area where Service originates or terminates) or other Unitas designated terminal equipment for purposes of interconnection, or at the End User or Customer Premises. Unitas will designate the Point of Termination for Service. This may also be referred to as the demarcation.
Premises mean a physical address where Service is provided and may be identified as a Point of Termination.
Scheduled Maintenance means that Unitas determines that it is necessary to interrupt or there is a potential for an interruption of Service(s) and Unitas will use commercially reasonable efforts to perform maintenance during off-peak hours (midnight to 6:00 am local time). Notification for Scheduled Maintenance shall be at least 5 business days unless determined to be Emergency Maintenance.
Service means dedicated Network Services offered by Unitas and provided under these Terms and Conditions. Unless indicated to the contrary in an exhibit or addendum to these Terms and Conditions, it is anticipated that some Connectivity Service provided by Unitas shall be provided using the telecommunications network of a third party provider that is not owned or operated by Unitas, but where Unitas contracts for the use of a portion of the network to provide some or all of the Services called for hereunder (with the remainder of the Services contracted for from additional third party providers). These Terms and Conditions of the Service may be subject to requirements of underlying Service providers.
Service Level Agreement (individual guaranty standards “a Service Level” ) means is a written commitment made by Unitas guaranteeing standards of particular aspects of the Services agreed between the Parties and inter alia making provision for credits to be made to Customer for incidents in agreed circumstances where such standards are not met. Unless otherwise specifically provided incidents covered by the Service Level Agreement or Service Level shall not be deemed defaults under the Agreement and the credits made to Customer thereunder shall by Customer’s sole remedy in respect of such incidents.
Service Order Form or Order (“SOF”) means the form that Customer completes and submits to Unitas, either electronically, via email, by hard copy or on-line ordering platform, that contains the information necessary, such as Service address, rates, Point of Termination, or Service Term that is necessary for Unitas to provision Service. Each agreed SOF shall become part of these Terms and Conditions which together with any addenda or supplements agreed shall form a binding contract.
Service Outage means an interruption or degradation of Service below industry specifications for the affected Service.
Service Term or Service Contract Term means the length of term commitment made by Customer for a Service and established in a Service Order or SOF.
Subcontracting means Unitas’ use of third parties to assist in the provision of services to a Customer. Subcontracting may include but is not limited to the use of a third-party data center to host Customer data, or the engagement of a third party to handle all or a portion of the services contracted by the Customer. Unitas may Subcontract Client services at will, in its sole discretion. Unitas will ensure the quality of work performed by any employee or Subcontractor in support of Unitas services meets or exceeds all contractual obligations under this agreement.
Taxes means the amounts that Unitas is required or permitted by federal, state, local or foreign taxing authorities to collect from Customer in connection with its furnishing services, as well as any other imposition by any governmental authority that has the effect of increasing Unitas’ cost of providing Services. Taxes include but are not limited to, personal property taxes on property used to provide Service and sales (or otherwise passed through to Unitas by any Service provider), use, receipts, telecommunications, excise, utility or other similar transaction based taxes, however, designated, imposed directly on Service or upon Unitas as a result of its provision of Service. Taxes do not include any tax based upon Unitas’ net income, net worth, capital structure or payroll.
Term shall have the meaning set forth in Section 5.01. See also Service Term or Service Contract Term.
Terms and Conditions mean these Terms and Conditions, including any Service Schedules, SOFs, and Tariffs. These Terms and Conditions shall not apply to any existing, unexpired agreements negotiated and executed between the Parties
Website means www.unitasglobal.com, any related subpages, and successor websites.
Article II. Service
2.01 Availability and Ordering of Facilities.
(a) Unitas will provide Services to Customer pursuant to these Terms and Conditions. Service at all times is offered and furnished subject to the availability of facilities, including those provided by third party service providers. All Services are provided on an individual case basis and shall be subject to these Terms and Conditions. Unitas may limit or restrict Service, if it determines in its reasonable judgment it is required for management of its network.
(b) In order for Unitas to provide Services, Customer must submit a completed and valid SOF. For connectivity orders Unitas will provide a NOR to Customer, which does not constitute acceptance of the SOF, but is intended to confirm the receipt of the SOF. Ordering for certain Services may be submitted online through an integrated Docusign function for approval before being passed to the Unitas delivery team. Unitas reserves the right to reject a SOF based upon lack of necessary information to process the order, expired quote, rates or offer, lack of facilities or credit concerns regarding Customer. Upon acceptance of the SOF, Unitas will issue Order Confirmation to Customer to provide the Services identified in the SOF.
(c) Unitas will use commercially reasonable efforts to install each Service on or before the estimated Firm Order Commitment date, however, the inability of Unitas to deliver the Service by such date shall not be deemed a material breach of these Terms and Conditions or a Default, as the parties acknowledge that Unitas cannot fully control the timing of delivery of Service due to such work generally being performed by third party Carriers on their networks, and due to factors such as Force Majeure events or other events beyond the control of Unitas.
(d) For orders:
- Unitas reserves the right to issue revised pricing or revised Firm Order Commitments, should Customer request changes after the Firm Order Commitment date is communicated to Customer.
- Execution of an Order by the Parties may be made electronically or in writing. Customer execution may be either manually or electronically delivered on the Unitas Global ordering platform and any such offer shall remain open for Unitas Global’s delivery of acceptance by a Firm Order Commitment unless cancelled before FOC delivery. The delivery of an FOC shall form the binding contract for the applicable Order. For avoidance of doubt the acknowledgement by Unitas Global of receipt of an Order is not an FOC unless otherwise expressly stated.
- Delay in Start Date. Customer may request a delay in the Service start date with written notification provided that: (i) the request is made no later than ten (10) business days prior to the FOC date; (ii) the aggregate number of days requested for such delay request does not exceed thirty (30) calendar days; and (iii) the number of delay requests is one (1). Customer is responsible for any third party charges Unitas experiences as a result of Customer’s delay request for facilities or other changes. Customer may be assessed a $250 change order charge by Unitas for each change requested after issuance of the FOC date.
- Customer may request a delay in the Service end date via written notification to Unitas (such notification being a “Disconnect Order”) provided that: (i) the request is made no later than ten (10) business days prior to the Service end date identified in the FOC (the “Disconnect Date”).
- Customer Not Ready is defined as any event outside of the direct control of Unitas Global, caused by Customer Not Ready ("CNR") which prevents the activation of the Services, including but not limited to failure by customer or any third party to make alterations to premises, to deploy customer equipment, extended demarcation issues, inappropriate power or space, or customer requests for more time. Unitas shall be entitled either a) to make a charge for the actual costs to Unitas Global arising from the CNR or b) to make a charge to Customer in the case of any CNR to the extent the MRC and any NRC of the applicable Order for the period of delay, whichever shall be the greater. For avoidance of doubt any such delay period does not form part of the applicable Service Contract Term.
- Online Ordering Account Creation and Security. If using Unitas Global’s online ordering platform Customer acknowledges their user responsibility and ordering capability in use of the Unitas Global ordering platform. In respect of such use:
Definitions of Terms.
Accept a User ID means to manifest by use or otherwise approval of the contents of a User ID and the terms and conditions of this Agreement.
User Identification (User ID) means a computer-based user access record that (a) identifies Unitas Global as the party issuing it, (b) identifies a Customer User (“User”), and (c) contains the User ID and password of the applicable User. When this Agreement references a User ID, such reference also includes the related password
Revoke a User ID means to make a User ID ineffective permanently from a specified time forward.
i) Access. Subject to the terms and conditions of the Agreement and User being issued and accepting a User ID, Unitas Global hereby grants Customer the right and license to access certain Unitas Global Information and Applications, to conduct certain Transactions, and to otherwise communicate with Unitas Global via electronic access. Customer Users may not share the User ID with or permit its use by any other person, including other employees of Customer.
- ii) User ID . Before Unitas Global will permit Customer Users to access Unitas Global Information and Applications, to conduct Transactions, and to otherwise electronically communicate with Unitas Global , Customer must obtain a User ID (including a password) from Unitas Global for each employee who will access Information and Applications, conduct Transactions, or communicate with Unitas Global via electronic access following the process described generally below.
iii) Application for User ID. Customer shall apply for User IDs by following the guidelines/documentation supplied By Unitas Global outlined for the specific application User will be using.
- iv) Issuance. Unitas Global shall promptly examine any User ID Request. If Unitas Global, exercising its sole reasonable discretion, finds the User ID Request to be in good order, Unitas Global shall issue a User A refusal to issue or revoke a User ID for any reason shall not incur liability for any loss arising out of such refusal. Upon approval or rejection, Customer shall be notified in accordance with the procedures documented for the applications(s) requested.
- v) Acceptance. Customer shall be deemed to have accepted each User ID it obtains upon using the User ID from Unitas Global and shall be deemed to accept an existing User ID if it continues the use of that existing User A User ID shall not be valid until both issued and accepted following the date of becoming a User. Customer will pay Unitas Global in accordance with the terms of the Agreement regardless of whether User IDs have been issued or accepted.
- vi) Operational Period. Unless earlier revoked, a valid User ID may be used only during its operational period, which begins on the issuance date of the User ID and expires when User ID is revoked or when the Agreement is terminated.
vii User shall safeguard and maintain its User IDs in strict secrecy. It is Customers's responsibility and in its own interests, as User access has the capacity to bind Customer in contract, to take reasonable security measures to prevent unauthorized access to, disclosure, and use of the User IDs, including revoking User IDs for any personnel no longer authorized/employed by User. CUSTOMER IS RESPONSIBLE FOR ALL USE OF EACH OF USER IDS ISSUED TO ITS USERS, INCLUDING UNAUTHORIZED USE BY A THIRD PARTY. CUSTOMER MUST NOT ALLOW ANY UNAUTHORIZED THIRD PARTY TO HAVE ACCESS TO ITS USER IDS, AND MUST SAFEGUARD ITS USER IDS FROM LOSS, MODIFICATION, DISCLOSURE, OR COMPROMISE. UNITAS GLOBAL HAS NO RESPONSIBILITY FOR PROTECTING CUSTOMER’S USER IDS IN THE EVENT OF ANY COMPROMISE OF ANY USER ID, CUSTOMER MUST IMMEDIATELY NOTIFY UNITAS GLOBAL.
viii) Representations and Warranties of User. By Accepting a new or existing User ID, Customer represents and warrants that: (a) a User ID will be given to only one employee of the User, and no person (other than employees of User) will have access to any User ID; (b) the User ID will only be used in accordance with this Agreement, and will not be used for any other purpose; (c) all information set forth in the User ID Request is true. Customer will immediately notify Unitas Global if any of its User IDs are compromised or if any information in the User ID is no longer true.
2.02 Special Construction and Acquisition of Telecommunication Facilities.
(a) The provision of Services may require special construction of facilities and equipment by Unitas or its third party service providers or contractors, including but not limited to, entrance facilities or cross connections (generally referred to as special construction, and acquisition of telecommunication facilities). Notwithstanding any other provision of these Terms and Conditions, if Unitas is required to specially construct or acquire telecommunication facilities from a third party, or both, in order to provide Service, and the costs thereof are not included in the Monthly Recurring Charge or SOF for the affected Service, the Parties will agree in writing on the charges applicable to the installation prior to the undertaking of any activity by Unitas which will be incorporated into these Terms and Conditions, and failing to agree, Unitas shall have no obligation to provide the Service which would require such additional facility usage. Customer is responsible for payment of all Monthly Recurring and Non-Recurring Charges for special construction and acquisition of telecommunication or other facilities set forth in written agreement between Unitas and Customer.
(b) Customer may elect to cancel Service involving special construction or acquisition of telecommunication facilities from a third party after the Order Confirmation but prior to the FOC or Activation date. In such case, Customer will reimburse Unitas for all unpaid costs and expenses incurred by Unitas in connection with the special construction or acquisition up to the time of cancellation. This payment obligation is in addition to any other rights and remedies Unitas may have at law, or as provided in these Terms and Conditions including Order Cancellation Fees and Charges.
(c) Customer’s obligation to remit payment for the Services is independent of Customer’s obligation to have facilities in place on its side of the Point of Termination to support Services. Customer shall be responsible to pay Unitas all charges applicable to a Service regardless of whether Customer may or may not use the Service due to factors unrelated to Unitas performance. Upon completion of installation and testing of the Service ordered in any SOF, Unitas will deliver to Customer an Order Completion Notice. Upon receipt of the Order Completion Notice, Customer shall have a period of two (2) business days to confirm that the Service has been installed and is functioning properly. Unless Customer delivers written notice to Unitas within such two (2) business day period that the Service is not installed in accordance with the SOF and is not functioning properly, Customer shall be deemed to have confirmed that the Service has been installed and is functioning properly upon expiration of such two (2) business day period. In the event that Customer notifies Unitas within such two (2) business day period that the Services is not installed in accordance with the SOF and is not functioning properly, then Unitas shall correct any deficiencies in the Service.
Article III. Payment, Billing and Financial Information
3.01 Billing. Unless otherwise specified in an SOF all billing for Monthly Recurring Charges are billed in advance and Non-Recurring Charges may be billed either in advance or in arrears as shall be agreed by the Parties. All invoicing commences on the Billing Start Date applicable to the Service in question. If the Billing Start Date occurs on a date other than the first day of the monthly billing period, or if Service is discontinued on a day other than the first day of the monthly billing period, Monthly Recurring Charges will be prorated using a thirty (30) day calendar month. Unitas will invoice Customer for the first two (2) full months of Service in advance.
3.02 Third Party Supplier Power charge increases. For certain Services offered by Unitas Global, including but not limited to deployments in foreign jurisdictions, local power companies and colocation suppliers delivering power for Services reserve the right to increase prices to reflect local power price index cost increases. Customer shall pay any such increases up to a maximum cap of 5% per annum applicable Service cost (without added margin to Unitas) in addition to MRCs. Unitas shall provide all available documentation to evidence such increases.
3.03 Customer Payment Obligations. Customer must pay all invoiced charges for Service without deduction or setoff within thirty (30) days of the date of an invoice (“Payment Period”). All payments will be made via ACH or other electronic transfer in accordance with the instructions provided by Unitas unless alternative arrangements have been mutually agreed to by Unitas and Customer in advance in writing.
3.04 Late Payments. Payments not received within the Payment Period will be considered past due. Past due amounts accrue a late payment charge equal to the lesser of one and one half percent (1½%) per month, or the maximum legal rate permitted by law, of all outstanding balances as of the invoice date (“Late Payment Charges”). Late Payment Charges will be carried forward on all subsequent monthly invoices and added to the outstanding balance. Failure to make full payment within the Payment Period will be considered a material breach of these Terms and Conditions.
3.08 Deposits and Additional Assurances of Performance.
(a) Unitas reserves the right at all times to assess the financial stability and ability of Customer to pay for Services in a timely manner. Unitas may prior to accepting any SOF, or at any time if the Customer is delinquent in payment on more than two occasions in any 12 month period its sole discretion request that Customer provide information reasonably necessary to determine the current financial standing of Customer, including: (1) credit history reports; (2) monthly, quarterly or annual financial statements, both audited and unaudited; and (3) current vendor or banking references. Unitas may, based upon the information gathered or other publicly available information, change its payment arrangements with Customer, including but not limited to requirement of a deposit, letter of credit, or other adequate assurance of performance in order to continue to provide Service to Customer.
(b) Customer is obligated to provide the requested financial information referenced in Section 3.04(a) or deposit via electronic transfer, letter of credit or other adequate assurance of performance to Unitas within ten (10) days of written request.
(c) The failure to make full payment of outstanding balances within the Payment Period or provide the information, deposit, letter of credit or other adequate assurance of performance within the notice period provided in Section 3.04(b) may result in any of the following actions to be taken by Unitas upon five (5 days’ written notice: (1) suspension, disconnection or termination of Services; (2) placement of a hold on all pending SOFs, quotes, installations, or other provisioning activities; (3) refusal to accept new SOFs or requests for quotes; and (4) suspension of all access to Unitas on-line ordering, quoting and systems. Unitas does not waive any rights, and no waiver should be inferred or implied, where it determines whether to enforce any provision of this Section 3.04, or to exercise any option permitted herein.
(d) Unitas may exercise any of its rights under Section 3.04 where it determines that there is a risk that Customer will be unable or unwilling to pay for any Service, or is concerned about Customer’s ability or willingness to pay for any Service. These events include but are not limited to, failure to pay invoices when due, Unitas’ belief of a material change in Customer’s financial condition, or a material increase in Customer’s anticipated or actual use of Services.
3.9 Bill Disputes and Previous Amounts Not Invoiced.
(a) Customer may dispute an invoice or charges by sending written notice to Unitas within the Payment Period of the dispute (“Dispute Notice”). The Dispute Notice must contain the following information: (1) Circuit identification numbers for each Circuit with disputed charges; (2) billing information related to the dispute; (3) a full and complete explanation of the basis of the disputed charge; and (4) copies of all relevant documentation. Customer may withhold payment of disputed charges only. Any payment of disputed amounts within the Payment Period will not constitute a waiver of Customer’s rights to dispute charges under these Terms and Conditions. In no event may Customer dispute a charge more than sixty (60) days after the date that the charge first appeared on a Customer invoice. Any dispute not made in the manner and time required herein is waived by Customer.
(b) Unitas will investigate and promptly resolve Customer’s dispute within thirty (30) days of Unitas’ receipt of the Dispute Notice. Dispute Notices that do not contain the information necessary to resolve the dispute will be denied. Customer may resubmit a dispute so long as the resubmitted Dispute Notice is timely as set forth in Section 3.05(a). Customer shall cooperate and provide all information requested by Unitas to resolve the dispute. Unitas may i reject the Dispute Notice, in whole or in part, and will advise Customer of the basis for its determination. If Customer is not satisfied with Unitas’ determination, then Customer may elect to further dispute the matter in accordance with the Dispute Resolution provisions of these Terms and Conditions.
(c) If a Dispute Notice is denied and Unitas determines that the amounts withheld by Customer were legitimate charges, then Customer must pay the total outstanding amounts due and owing, including Late Payment Charges, within ten (10) days of Customer’s receipt of the notice from Unitas denying the Dispute Notice.
(d) Unitas may invoice Customer for amounts not previously invoiced provided such amounts are invoiced within six months (6) of the date Service was provided or the amounts should have been invoiced, whichever date is later.
(e) Unitas will use commercially reasonable efforts to apply credits to Customer’s account, including credits related to Dispute Notices, to the Customer’s account as may be agreed following the Service Outage for which credits are due or the resolution of the Dispute Notice as provided herein.
Article IV. Taxes and Surcharges
4.01 Manner of Assessment. All Service charges, whether Non-Recurring Charges, Monthly Recurring Charges or other charges, are exclusive of and do not include Taxes or Governmental Charges.
4.02 Payment Obligation. Customer is obligated to pay all Taxes and Governmental Charges and comply with any changes to Taxes and Governmental Charges. Unitas may revise terms or conditions of Service as a result of a change in Governmental Charges. In the event that Unitas revises terms or conditions of Service as a result of a change in Governmental Charges that is not mandated by rule, order, statute or law, then Unitas will provide Customer with thirty (30) day written notice of such change and Customer may elect to discontinue, without further termination liabilities or other payment obligations (except for charges incurred to date of such termination or discontinuance), the affected Service by sending written notice to Unitas at least thirty (30) days prior to its intent to discontinue such Service; provided however, should Unitas rescind the revised terms or conditions of Service that were set forth in the prior notice of change to Customer, then the termination by Customer as set forth in this sentence shall be rescinded and the Service shall continue to be provided and billed by Unitas, as provided prior to the delivery of the notice of the revised terms or conditions of Service.
4.03 Responsibilities. Unitas and Customer shall each be responsible for any sale, lease, or use of personal property, ad valorem or other similar taxes on property it owns or leases. Unitas and Customer are each responsible for properly reporting owned property to the appropriate taxing authorities and neither Unitas nor Customer will be responsible for either reporting or paying personal property or ad valorem taxes owed by the other party. In the event that a third party carrier or Service provider passes through to Unitas additional charges, surcharges or taxes applicable to the underlying Service provided to Customer (however characterized by the third party carrier or Service provider), Unitas will pass through such additional charges, surcharges or taxes which were not specified in the Service Order to Customer without mark-up and Customer will be obligated to pay such amounts. Unitas may upon request provide to Customer documentation to support such additional charges, surcharges or taxes.
4.04 Tax Exemption Certificate. Customer is at all times obligated to pay its Taxes and other Governmental Charges. In the event that Customer believes it is exempt from such Taxes or other Governmental Charges, Customer may provide Unitas with a current certificate demonstrating its exemption from the applicable Taxes. Unitas will cease the imposition of such Taxes as of the date that Unitas determines that the exemption certificate demonstrates that Customer is exempt from the applicable Taxes (“Exemption Certificate Date”). Unitas is not obligated to credit or otherwise waive Customer’s obligation to pay Taxes prior to the Exemption Certificate Date, and Customer must look to the proper taxing authority for refund or credit of the Taxes paid on Customer’s behalf as its sole and exclusive remedy with respect to Taxes or other Governmental Charges passed through to Customer by Unitas prior to the Exemption Certificate Date. Unitas shall have the right to require that Customer provide on an annual basis proof of continued exemption from applicable Taxes, and failure to provide such proof shall provide to Unitas the right to thereafter assess the corresponding Taxes and Governmental Charges until a subsequent appropriate exemption certificate is provided.
4.05 Audits. Unitas and Customer will each fully cooperate with the other to provide documentation and support necessary to comply with any Tax audit by a taxing authority.
Article V. Term and Termination
(a) Term. The Term of these Terms and Conditions shall commence upon the execution of the First Service Order executed by the Parties hereunder (“ Term”) and shall survive the expiry of the last Service Order executed by the Parties hereunder for a period of three years unless otherwise expressly agreed by the Parties. The particular Service Term for each Service shall be the term specified in the SOF for the accepted Service.
(b) Renewal of Services: These Terms and Conditions and Services will automatically renew on a month-to-month basis after the Initial Term (each such renewal period individually or collectively, as the case may be, is referred to as the “Renewal Term”) unless Unitas or Customer provides the other in writing of its intent not to renew these Terms and Conditions at least sixty (60) days prior to the expiration of the Initial Term or at least forty five (45) days prior to the end of the then current Renewal Term then in place if month to month or 60 days if the Renewal Term is for 12 months or longer as defined in the Service Order. In the event that a Service Term extends beyond the expiration of these Terms and Conditions, the affected Service will be provided in accordance with these Terms and Conditions as if the terms were in full force and effect, subject to any change in pricing mutually agreed to by Unitas and Customer, if any. NOTE: For avoidance of doubt the notice periods in this Section 5.01.(i) shall apply solely to cancellation of autorenewal. Section 5.02 deals with notice required for other termination of Services.
5.02 Termination and Discontinuance of Service.
(a) Unitas may suspend or terminate any Service upon an event of “Default” by Customer (as defined in these Terms and Conditions), where such Default is not cured within ten (10) days of delivery of written notice to Customer by Unitas of Default. Suspension or Termination of any Service is in addition to, and not in limitation of, any other remedy Unitas may have at law or equity. The obligations of Customer under these Terms and Conditions shall survive any termination of Service.
(b) Either Unitas or Customer may terminate Service(s) provided hereunder if the other becomes insolvent, liquidates, is adjudicated bankrupt, makes an assignment for the benefit of creditors, invokes any provision of law for the relief of debtors or initiates any proceeding seeking protection from its creditors.
(c) If Customer plans to terminate Service(s) (other than under Section 5.01) or discontinue a Service for any reason, Customer must provide Unitas with written notice in accordance with these Terms and Conditions no less than thirty (30) days prior to Customer’s termination of Service in the case of Network Services or sixty (60) days for other Services. For a request to disconnect or terminate Connectivity Service, the notice must be in the form required by Unitas at the time and in accordance with its policies and procedures for discontinuance of Service, which may include: (1) the Circuit ID for the requested Service; (2) the requested date for discontinuance; and (3) the Service address location for the Circuit(s). A communication to discontinue a Service which does not comply with Unitas’ standard policies and procedures under these Terms and Conditions, or which fails to include all essential information, or which is a termination of the Service where there is no contractual right to terminate, will be ineffective and charges will continue to accrue.
(d) Customer will be liable for early termination charges under these Terms and Conditions for discontinuing Service prior to the end of the Term or Service Term. Unless stated otherwise, the early termination fee (“Early Termination Fee”), which the Parties agree is not a penalty but a reasonable method of calculating Unitas’ damages that are otherwise impossible to estimate, is determined by multiplying the Monthly Recurring Charge for the Service by the remaining months in the Service Term.
(e) Upon termination or expiration of Service, Customer shall immediately and without further notice pay to Unitas all amounts outstanding, including all unpaid charges, unbilled amounts, charges associated with Late Payment Charges and Early Termination Fees. Termination of Service will not suspend or discontinue the calculation and accrual of Late Payment Charges.
(f) Where Unitas has coordinated third party telecommunication facilities, Customer will at all times remain obligated to pay for charges and termination fees associated with third party telecommunication facilities. Customer will cooperate with Unitas to provide all necessary documentation and forms requested by the third party telecommunications Service provider to disconnect, terminate or re-assign telecommunication facilities being provided for the benefit of Customer.
5.04 Order Cancellation Fees and Charges.
(a). Customer may cancel a SO(s) prior to Firm Order Commitment Date by notifying Unitas Global at firstname.lastname@example.org. If Customer cancels prior to issuance of FOC date, Customer may cancel without charge. If the SO is cancelled after the issuance of FOC date, Customer shall pay a post-engineering cancellation fee of 50% of one month’s MRC as specified in the SO. If the cancelled SO includes Special Construction, Customer shall pay Unitas Global all actual costs incurred by Unitas Global in the provision of the Service. If Unitas Global was required prior to cancellation to order any Third Party Services as specified on the SO, Customer shall pay all costs incurred by Unitas Global for those Third Party Services required to provision the Service.
(b) Customer must pay charges for Order Cancellation requests as provided above no later than thirty (30) days following the date of cancellation of the Service Order in question.
Article VI. Representations and Warranties
6.01 Standing and Authority. Unitas and Customer each represent and warrant it is, and will remain, duly organized, validly existing, and in good standing under the laws of the place of its origin, and that they possess all the authority necessary to enter into and perform their obligations under these Terms and Conditions.
6.02 Third Party Warranties. a) Unitas shall pass through to Customer all warranties covering Equipment and/or Services provided under these terms and Conditions to the extent that Unitas is able to do so pursuant to the agreements under which it obtained the warranties.
- b) Customer shall not make any representations or warranties, whether written or oral, to third parties, including without limitation, end users on Unitas’ behalf that are not expressly authorized herein or that materially depart from any applicable service level commitment.
6.03 Customer. Customer represents and warrants that: (1) services it furnishes to its End Users are designed, installed, provided and maintained in compliance with applicable legal requirements and those established in these Terms and Conditions; (2) all Customer traffic, data or communications handled by Unitas is compliant with these legal requirements and those established in these Terms and Conditions; and (3) it possesses, and will maintain, all licenses, approvals, registrations and certifications required by regulators or other third parties to furnish its services.
6.04 Disclaimer of Warranties. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THESE TERMS AND CONDITIONS, ANY EQUIPMENT OR SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”. UNITAS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND SPECIFICALLY DISCLAIMS ANY WARRANTY ARISING BY USAGE OF TRADE OR BY COURSE OF DEALING. FURTHER, UNITAS MAKES NO REPRESENTATION OR WARRANTY THAT TELEPHONE CALLS OR OTHER TRANSMISSIONS WILL BE ROUTED OR COMPLETED WITHOUT ERROR OR INTERRUPTION (INCLUDING CALLS TO 911 OR ANY SIMILAR EMERGENCY RESPONSE NUMBER) AND MAKES NO GUARANTEE REGARDING NETWORK SECURITY, THE ENCRYPTION EMPLOYED BY ANY SERVICE, THE INTEGRITY OF ANY DATA THAT IS SENT, BACKED UP, STORED OR SUBJECT TO LOAD BALANCING OR THAT UNITAS’ SECURITY PROCEDURES WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO CUSTOMER'S DATA AND INFORMATION.
Article VII. Default
7.01 Default Events.
(a) Unitas or Customer is in Default under these Terms and Conditions if any of the following occurs:
(i) A party violates any legal requirements relating to the provision or receipt of Service, including the AUP and the violation is not remedied within thirty (30) days of receipt of written notice of the violation;
(ii) A party fails to make full payment of outstanding amounts due to Unitas within the Payment Period; or
(iii) A party fails to perform a material obligation under these Terms and Conditions, and the failure is not remedied within thirty (30) days of receipt of written notice of the failure (except for a payment default under Section 7.01(a)(ii) or Section 3.02 for which no cure period applies).
(b) A Service Outage, Emergency Maintenance, or Scheduled Maintenance is not a Default that would entitle Customer to terminate these Terms and Conditions or the affected Service.
7.02 Payment or Other Default. A Default under Article 3 or Section 7.01(a)(ii) or any Service will entitle Unitas to collect, and Customer will be obligated to pay, Early Termination Fees in addition to pursuing other available remedies at law and equity.
Article VIII. Confidential Information
8.01 Confidential Information "Confidential Information" shall mean any and all information which is disclosed by Unitas or Customer to the other, except for information which the receiving party can demonstrate: (a) is or becomes available to the public through no breach of these Terms and Conditions; (b) was previously known by the receiving party without any obligation to hold it in confidence; (c) is received from a third party free to disclose such information without restriction; (d) is independently developed by the receiving party without the use of confidential or proprietary information of the disclosing party; (e) is approved for release by written authorization of the disclosing party, but only to the extent of such authorization; or (f) is required by law or regulation to be disclosed or is disclosed in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof, but only to the extent of and for the purposes of such required disclosure or order, and only if the receiving party first notifies the disclosing party and permits the disclosing party to seek an appropriate protective order.
8.02 CPNI. Customer Proprietary Network Information (“CPNI”) is Customer information that is acquired during the process of providing telecommunication services to Customer or End Users. Unitas and Customer each agree and warrant to the other that it will comply with all federal regulations and the EU GDPR regarding the management and retention of CPNI. Customer hereby consents to Unitas using Customer CPNI, and/or sharing it with its authorized agents and employees, for the purpose of furnishing Customer with information regarding its telecommunication products and services. Customer’s approval of the use of CPNI will remain in effect during the Term of these Terms and Conditions and any Service Term, unless and until Customer directs otherwise. Customer may revoke its approval to use CPNI for the purpose described herein by contacting Unitas at any time, and at no cost to Customer, by emailing CustomerCare@unitasglobal.com; provided, however, that notwithstanding anything to the contrary contained herein or in any NDA between Customer and Unitas, Unitas shall be permitted to retain CPNI and any other Confidential Information during the Term hereof and any renewal periods with respect to any of the Circuits put in place during the Term hereof, for a period extending until five (5) years following the date of disconnection of the last Circuit installed during the Term hereof, with such information to be retained by Unitas for archival purposes.
8.03 Use of Confidential Information.
(a) Unitas and Customer agree that to the extent that either of them provides to the other information which is not commonly known and which the disclosing party believes to be confidential and such information is not already known to the recipient or is not otherwise independently developed by the recipient or is not otherwise made known to the recipient from a source that is not in breach of its confidentiality obligations to the disclosing party, then the recipient agrees on behalf of itself, its officers, directors, beneficial owners, managers, employees and affiliates to maintain the confidentiality of such information during the Term of these Terms and Conditions and for a period of five (5) years thereafter, subject to the right to disclose such information if required pursuant to any legal proceedings (after giving prompt notice to the obligation to disclose the same to the disclosing party); the confidentiality obligations of this sentence shall be superseded by the terms of any NDA between Unitas and Customer.
(b) With respect to any Confidential Information disclosed under these Terms and Conditions, Customer agrees that it shall: (a) use the Confidential Information only for the purpose of conducting business with and/or obtaining Service from Unitas and in furtherance of any such opportunity which the Parties mutually agree to explore; (b) hold the Confidential Information in confidence, exercising a degree of care not less than the care used by Customer to protect its own proprietary or confidential information; (c) restrict disclosure of Confidential Information to anyone other than Customer and not disclose it to any other third party without the prior written consent of Unitas; and (d) copy the Confidential Information only as necessary for Customer who is entitled to receive it, and ensure that all confidentiality notices are reproduced in full on such copies. Customer agrees to maintain in confidence, and not to disclose to third parties or use, except for such use as is expressly permitted herein, Unitas’ Confidential Information and any other information and materials provided by Unitas in connection with these Terms and Conditions, including but not limited to the content of these Terms and Conditions and any Service(s).
8.04 Return or Destruction. All Confidential Information obtained by Customer through its relationship with Unitas and use of Unitas’ Service(s) shall be deemed the property of Unitas and, upon request, the Customer will return to Unitas all Confidential Information received in tangible form, or will destroy all such Confidential Information and certify in writing to Unitas that all such information has been destroyed. If User loses or makes an unauthorized disclosure of Unitas’ Confidential Information, it shall notify Unitas immediately and use all reasonable efforts to retrieve the lost or wrongfully disclosed information.
8.05 Irreparable Harm. Customer agrees that an impending or existing breach of the provisions herein would cause Unitas irreparable injury for which it would have no adequate remedy at law, and that Unitas shall be entitled to equitable relief including immediate injunctive relief prohibiting such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of these Terms and Conditions, but shall be in addition to all other remedies available at law or equity.
8.06 No Transfer. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise transferred by this Section or any disclosure hereunder, except for the limited right to use such Confidential Information in accordance with these Terms and Conditions.
Article IX. Indemnification and Limitation of Liability
9.01 a) Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS, UNITAS SHALL NOT BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST DATA, LOST REVENUES OR COST OF PURCHASING REPLACEMENT SERVICES) ARISING OUT OF OR RELATING TO SERVICES SUPPLIED UNDER THESE TERMS AND CONDITIONS. UNITAS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY ACTUAL DAMAGES IN EXCESS OF THE AGGREGATE AMOUNT UNITAS, THREE (3) MONTHS PRIOR TO THE DATE OF THE ALLEGED BREACH OR INJURY, COLLECTED FROM THE CUSTOMER WITH RESPECT TO THE SERVICES DELIVERED HEREUNDER WHICH CREATED THE LIABILITY. THIS LIMITATION SHALL APPLY REGARDLESS OF FORESEEABILITY OR WHETHER DAMAGES ARE CAUSED BY NEGLIGENCE, WILLFUL MISCONDUCT, OR WRONGFUL ACT ARISING FROM, OR RELATED TO, THESE TERMS AND CONDITIONS. BY ACCEPTING THESE TERMS AND CONDITIONS AND REMAINING A CUSTOMER, CUSTOMER MANIFESTS ITS ACCEPTANCE OF THIS LIMITATION ON ACTUAL DAMAGES AS FAIR AND REASONABLE.
- b) Sole Remedy. THE LIQUIDATED DAMAGES PAYABLE UNDER THE SLA(S) SHALL BE THE CREDITS STATED IN ANY APPLICABLE SLA(S) WHICH ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR UNITAS’ FAILURE TO MEET THOSE GUARANTEES FOR WHICH CREDITS ARE PROVIDED; AND THE PARTIES AGREE THAT THE CREDITS ARE NOT A PENALTY ARE FAIR AND REASONABLE AND REPRESENT A REASONABLE ESTIMATE OF LOSS THAT MAY REASONABLY BE ANTICIPATED FROM ANY BREACH.
(a) Each Party shall indemnify, defend, release and hold harmless the other Party from any suit, proceeding or other claim by a third party for damages, costs, and expenses (including reasonable attorneys’ fees and costs) arising from damage to tangible property, personal injury or death caused by the Indemnifying Party’s gross negligence or willful misconduct. In the event a claim relates to the gross negligence of both Parties, the relative burden of the claim shall be attributed equitably between the Parties in accordance with the principles of comparative gross negligence
(b) Customer’s Indemnification to Unitas. Customer shall indemnify, defend, release and hold harmless the Unitas from any suit, proceeding or other claim by a third party relating to (a) representations regarding the nature of Customer’s traffic; (b) any use or resale of Service by Customer, End Users, or others; and (c) Customer’s violation of any of its representations and warranties under these Terms and Conditions including without limitation, claims of libel, slander, unauthorized use of copyright, trademark, or other intellectual property by Customer or the business activities and practices of Customer arising from Customer’s use of the Service.
(c) The indemnification obligations of Unitas hereunder shall in no event exceed an amount equal to the amount of payments made to Unitas from Customer pursuant to these Terms and Conditions.
9.03 Indemnification Process. A Party that receives a claim, demand or lawsuit which is subject to the indemnification obligations under Section 9.02 of these Terms and Conditions (an “Indemnified Claim”) shall be referred to as the “Indemnified Party”. The Indemnified Party will immediately notify the other Party (the “Indemnifying Party”), and in no event more than five (5) business days after learning of the Indemnified Claim, provide to the Indemnifying Party all documentation, service of process, or written demands relating to the Indemnified Claim. A Party’s obligations of indemnity under these Terms and Conditions shall be subject to the following: (a) the Indemnified Party shall take all steps reasonably requested by the Indemnifying Party, at the Indemnifying Party’s expense, to mitigate any Indemnified Claim; (b) the Indemnifying Party shall have the right to control and direct the defense of the Indemnified Claim, at the Indemnifying Party’s expense, but shall keep the Indemnified Party up to date with respect to the status of the Indemnified Claim; (c) the Indemnifying Party shall not settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate such Indemnified Claim unless the Indemnifying Party has given the Indemnified Party reasonable prior written notice thereof and such settlement, compromise, consent or termination includes a release of the Indemnified Party from any liabilities arising out of such Indemnified Claim and does not require a payment by the Indemnified Party; (d) the Indemnifying Party will not permit any such settlement, compromise, consent or termination to include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of the Indemnified Party without the Indemnified Party’s prior written consent, such consent not to be unreasonably withheld; and (e) the Indemnified Party shall fully cooperate (to the extent that such cooperation is reasonable), at the Indemnifying Party’s expense, with the Indemnifying Party in such defense. Failure of the Indemnified Party to provide timely notice of a claim does not relieve the Indemnifying Party of the duty to indemnify, except to the extent that the Indemnifying Party can show that the delay materially and adversely prejudiced the Indemnifying Party.
9.04 Service Credits and Liability Limits.
(a) Notwithstanding anything to the contrary contained herein, Customer’s sole remedy in respect of any services provided under a Service Level Agreement for any failure of Service, Service Outage, Scheduled Maintenance or Emergency Maintenance is the right to receive Service Outage credits, if any, due under these Terms and Conditions. The foregoing limitation and the limitation in Section 9.01 applies to all causes of action and claims irrespective of their nature, including breach of contract, breach of warranty, strict liability, negligence, misrepresentation or any other tort.
(b) A credit allowance, unless otherwise expressly provided by an Exhibit or Addendum hereto, is applied against the Monthly Recurring Rate specified on the SOF for the Service and is dependent on the length of the Service Outage. In no event shall amounts to be credited in any one month exceed one month’s MRC. Only those facilities that experienced a Service Outage will receive a credit. Credits are not applied, and Customer is not eligible for, Service Outages due to Scheduled Maintenance, Emergency Maintenance, or Force Majeure including third party outages outside Unitas’s control.
(c) Credits for Service Outage are subject to the terms of the applicable Service Exhibit or Addendum, as amended by Unitas from time to time upon thirty (30) days written notice to Customer.
(d) All credits must be requested by customer within ten(10) business days of the Service Outage and Unitas’s data collection shall be used as the system of record for purposes of calculating availability.
9.05 Intellectual Property.
If Service, by itself as provided by Unitas, becomes, or if Unitas reasonably believes it may become, the subject of a suit, proceeding or other claim by an entity (not bound by these Terms and Conditions or an Affiliate of Unitas or Customer) that the Service directly infringes United States patent, trademark or copyrights of such entity, Unitas, at its own expense and option will: (a) procure the right to continue to provide Service; (b) modify or replace Service with a different one having substantially similar functionality; or (c) discontinue the Service and, as appropriate, refund to Customer a pro-rata portion of charges paid by Customer through the date of Service discontinuance.
Article X. Dispute Resolution
10.01 Limited Litigation Rights. Either Unitas or Customer may elect to litigate the following type of case or controversy: (a) an action seeking equitable relief; (b) a suit to compel compliance with this dispute resolution process; or (c) non-compliance with a party’s publicity obligations. Unitas may elect to litigate billing or payment disputes or collections. Any such litigation shall be: (i) held in the state or federal courts situated in Cook County in the State of Illinois to which jurisdiction and venue all parties consent; and (ii) by way of bench trial, with all parties waiving their right to trial by jury. The prevailing party will be entitled to recover its reasonable attorneys’ fees and costs in connection with such litigation.
10.02 Mediation. Unitas and Customer may elect, but shall not be required, to engage in non-binding mediation as a first alternative to arbitration or litigation. A party that requests mediation shall send written notice of its request for mediation to the other party who may then agree to mediate before a third party mediator hired to assist in the resolution of the matter. Unitas and Customer will each equally share the costs of such mediator.
Article XI. Assignment
Customer may not sell, transfer, or assign these Terms and Conditions, in whole or in part without prior written approval. Any such assignment shall be void.
Article XII. Notice
All notices required of Customer under these Terms and Conditions, including any notices of termination of Service, must be in writing and delivered by overnight courier (Federal Express or DHL, as examples) or prepaid certified mail, return receipt requested, to the last notified the principal offices of the receiving party All notices will be effective on the date of receipt by the receiving party.
Notices to Unitas:
Unitas Global Inc.,
910 W Van Buren St Suite 610,
Chicago, IL 60607
Attn: General Counsel
Unitas may elect to change its address or designated contact for purposes of Notices at any time. Unitas will post any modification to its address or designated contact on its Website with or without notice. Unitas may elect to send Notice of such change of address or designated contact via bill insert.
Article XIII. Force Majeure
Neither Unitas nor Customer shall be liable to the other, nor deemed in Default under these Terms and Conditions if and to the extent that such party’s performance is delayed or prevented by reason of Force Majeure, except that Customer’s obligation to pay for Services provided shall not be excused. For purposes hereunder, the term “Force Majeure” means an event that is beyond the reasonable control of the party affected and occurs without such party’s fault or negligence. Without limiting the foregoing, Force Majeure includes acts of God, fire, explosion, vandalism, terrorism, flood, storm, or other similar catastrophe; acts or omissions of other carriers; failure of the Internet not related to Unitas’ actions or inactions, or cable cut not caused by Unitas’ employees or contractors; any law, order, regulation, direction, action or request of any governmental entity having jurisdiction over either of the parties, or court, civil or military authority or any other instrumentality of one or more of said governmental agencies; national emergencies, insurrections, riots, wars, acts of terrorism, strikes, lockouts or work stoppages.
Article XIV. Miscellaneous
14.1 Order of Precedence and Interpretation.
In the event that Unitas and Customer enter into an Addendum that expressly and unequivocally provides that it supersedes and modifies any prior portion of these Terms and Conditions, its terms, conditions, charges, rates, or provisions, then such Addendum, once fully executed and incorporated herein, will control in the event of an inconsistency with these Terms and Conditions.
14.2 Unitas Facilities, Equipment and Software
(a) Unitas facilities, including equipment and software, used to provide Service will remain the exclusive property of Unitas or its assigns, and nothing contained in these Terms and Conditions can be interpreted to convey to Customer any right, title or interest in Unitas’ facilities, equipment or software, which will remain personal property even if attached to or embedded in realty. Customer may not remove or conceal any identifying plates, tags, or labels affixed to Unitas facilities or equipment, nor may Customer alter, or attempt to alter, software furnished as part of Service. Unitas may substitute or rearrange the facilities or equipment, or modify the software, so long as the quality of Service is not materially impaired by the changes.
(b) Upon termination of Service for any reason, Unitas will retrieve its facilities and equipment from Customer Premises or Customer, at Unitas’s expense, will return to Unitas, within a mutually agreed period after termination, all Unitas-provided facilities and equipment, along with any software and other information or materials provided by Unitas in connection with the furnishing of Service.
15.3 Data Security
If applicable to the Services Unitas Global shall:
- a) use commercially reasonable efforts to identify internal and external risks to the availability, confidentiality and integrity of customer confidential information in the Unitas environment and shall employ and maintain commercially reasonable physical, electronic and procedural safeguards and software security measures to maintain the security of the services and customer confidential information. Depending on the service, this may require the use of a supplier to assist in maintaining security. Customer acknowledges that Unitas Global is unable to guarantee absolute security of data or customer confidential information and shall assume no liability additional to its statutory obligations to Customer in respect of applicable local, state, federal and foreign privacy, security and data protection legislation. Unitas Global shall have no obligation or liability in respect of Customer’s data for (i) any reconfiguration, modification, misuse, or abuse of service(s) outlined in, but not limited to, the clauses in the AUP, by Customer or its agents or (ii) unless otherwise expressly agreed in writing by the parties any loss deletion or dissemination thereof. Without limitation of the foregoing, Unitas Global shall use and process personal information in accordance with applicable local, state, federal and foreign privacy, security and data protection legislation and,
- b) promptly notify Customer if having reasonable suspicion of any unauthorized loss, transfer, acquisition, or misuse of Customer Confidential Information. Unitas Global shall investigate any such incident, take any actions limited to the Unitas network environment that are necessary to mitigate resulting damage, and notify Customer of any implications to Customers’ environment that Unitas considers may be possible. Customer acknowledges that if Customer Confidential Information has been disclosed to or accessed by an unauthorized party, statutory requirements may require that Customer notify those persons whose personal information was disclosed.
- c) Data Protection and Privacy. To the extent the Services involve the processing of any Personal Data the Parties agree to add a specific Service Schedule Personal Data Addendum to these Terms and Conditions regarding the regulation of data protection. The Addendum shall be signed by the Parties and form part of the contract with these Terms and Conditions. In the course of performing their obligations under this Agreement, the parties agree to treat all personal information as confidential, and the Parties, undertake to observe all applicable laws and regulations regarding the handling and processing of such information. To the extent either party requests the handling or processing of Personal Data under this Agreement, the Parties agree to negotiate in good faith and agree to a specific Schedule to address the terms and conditions applicable to such activity. Without limiting the generality of the foregoing, the Parties agree that to the extent Personal Data is contained in traffic metadata or billing information, Unitas and not Customer acts as the data controller in accordance with the relevant regulation.
15.4 Severability. If any provision of these Terms and Conditions is held to be invalid or unenforceable, the remainder of these Terms and Conditions will remain in full force and effect, and such provision will be deemed to be amended to the minimum extent necessary to render it enforceable.
15.5 Waiver. The terms, representations and warranties of these Terms and Conditions may only be waived by a written instrument executed by the party waiving compliance. Except as otherwise provided herein, neither Unitas’ nor Customer’s failure, at any time, to enforce any right or remedy available to it under these Terms and Conditions shall be construed as a continuing waiver of such right or a waiver of any other provision hereunder.
15.6 Governing Law. These Terms and Conditions will be governed by, enforced and construed in accordance with the laws of the State of Illinois without regard to its choice of law principles, except to the extent that the Communications Act of 1934, as amended and interpreted by the FCC, applies to these Terms and Conditions. Unitas reserves the right to suspend, modify or terminate any Service, without limitation, where: (1) there is a material governmental change in law that materially impacts adversely Unitas’s delivery of Service either directly or through a third party provider; (2) regulatory change that prohibits or restricts Unitas from providing Service; or (3) any material rate, charge or term of such Service is substantially changed by a legitimate regulatory body, governmental authority, or by order of the highest court of competent jurisdiction to which the matter is appealed.
15.7 Export Regulations. Customer represents and warrants that (i) its use of the Services will not violate any embargoes, sanctions, trade restrictions or similar restrictions issued by any applicable governmental entity, and (ii) Customer, its Affiliates, and its End Users have not been designated by any applicable government or any government agency as a prohibited or restricted party under any trade restrictions, export laws or the like. Customer also will not use or permit third parties to use the Services for any purpose prohibited by applicable law. Customer may not use, export, re-export, import, or transfer any technology or data related to the Services except as authorized by both this Agreement and all applicable laws, rules and regulations.
15.9 Trademarks. Nothing in these Terms and Conditions creates in a Party any rights in the other Party's trade names, trademarks, service marks or any other intellectual property.
15.10 Headings. The headings used in these Terms and Conditions are for convenience only and do not in any way limit or otherwise affect any meaning of any terms of these Terms and Conditions.
15.11 Signatures. Any requirement for a signature in any document relating to these Terms and Conditions may be satisfied by an original signature, or by delivery of electronic mail in Adobe Portable Document Format (“PDF”) or similar scanned format, or by an electronic symbol or process (i.e., “e-signature”) or facsimile attached to or logically associated with these Terms and Conditions, including any component hereof, and executed or adopted by the person having the intent to sign the document. Any person completing, submitting, or executing any such document on behalf of Customer by way of the Internet or other electronic or online means represents that he/she possesses the authority to act on Customer’s behalf, and any such documents so delivered to, and accepted by, Unitas shall be binding on Customer.
15.12 Survival. Customer agrees that certain obligations under these Terms and Conditions, which by their nature would continue beyond Termination, cancellation, or expiration of these Terms and Conditions, shall survive cancellation or expiration of these Terms and Conditions. Such obligations include, by way of illustration only and not limitation, those contained in the Customer Obligations, Payments, Confidential Information, Warranty, Limitation of Liability, and Indemnification clauses.
15.13 Entire Agreement. These Terms and Conditions, together with all Service Schedules, constitutes the entire agreement between Unitas and Customer with respect to the subject matter hereof, and supersedes all prior offers, contracts, agreements, representations and understandings made to or with Customer by Unitas, whether oral or written, relating to the subject matter hereof, with the exception that these Terms and Conditions shall not supersede any existing MSA between Unitas and Customer.