TERMS AND CONDITIONS

Recitals

                WHEREAS, Equinox Communications (“EC”) wishes to provide to Customer and Customer wishes to procure from EC, services pursuant to the terms and conditions set forth in this Agreement; and

                NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto do hereby covenant and agree as follows:

 

Terms and Conditions

 

1        Service; Schedule; Service Order Form. EC agrees to provide the services (each a “Service” and collectively the “Services”) as described in this Agreement and all schedules attached hereto (each a “Schedule”) and in each applicable Service Order Form issued pursuant to a Schedule (each a “Service Order”), all of which Schedules and Service Orders are hereby incorporated herein and made a part hereof this Agreement. In the event of any conflict of terms of this Agreement and any Schedule or Service Order, the provisions of the Service Order shall take precedence first, followed by the Schedule and then this Agreement, except for the following provision.  The Services will be provided at the rates set forth in each Schedule.  Rates shall be fixed for the then-applicable Service term, except in the event of a rate increase by an EC underlying provider.  In that event, EC reserves the right to modify the rate for any affected Service. 

2        Bring Your Own Bandwidth.  The EC Bring Your Own Broadband feature (“BYOB”) allows business customers to use their cable modem, DSL modem, or other broadband Internet connection to make and receive Voice over IP (VoIP) phone calls. In the event that Customer shall use any services provided by EC Communications (“Service”) (i) in combination with

any service not provided by EC but provided by the Customer or the Customer’s vendor, (ii) with any other software and/or services provided by the Customer, or any other source other than by EC Communications, which may be installed to integrate with the Service, including but not limited to broadband access, voice services (local, long distance, toll free, etc) or any IP Solution (Internet access, VoIP telephone systems and services, call distribution and recording services (collectively referred to as “Customer Equipment”), (iii) with any other service platform that is not connected to an EC provided access facility, or (iv) any EC provided equipment used in combination with any broadband Internet connection not provided by EC, Customer agrees as follows:

 

2.1     EC will not be liable or responsible for any integration, installation, testing, troubleshooting, repair, support or maintenance regarding any Customer Equipment used in connection with the Service.

 

2.2    Customer understands that it may experience quality of service issues or degradation in Service resulting from the Customer Equipment. The Service Level Agreement will not be applicable to any Service provided to Customer used in combination with the Customer Equipment.

 

2.3    Customer understands that without a power over ethernet (POE) switch EC will have no troubleshooting ability at the device level.

 

2.4     Customer understands that without a managed router EC will have no visibility into the customer’s network for troubleshooting purposes.

 

2.5    Customer shall use the Service in compliance with, and subject to, all applicable government codes, ordinances, laws, rules and regulations, applicable tariff, and the Acceptable Use Policy, and any additional documentation corresponding to the Service, which can be found on www.equinoxcommunications.com and shall secure, prior to the delivery of the Service, and maintain in full force and effect during the applicable Service Term, any and all necessary approvals, consents, licenses, permits, franchises, or similar approvals which are necessary or required to be obtained by the Customer in connection with the Customer Equipment.

 

2.6    EC reserves the right to terminate the Service(s) in accordance with the terms and conditions of the Agreement immediately and without advanced notice if EC, in its sole discretion, believes that the above restrictions on use have been violated.

 

2.7    Customer acknowledges that it has received, has read and understands the 911 and E911 Disclosure and Notice and has provided an executed copy of same to EC.

 

3        Term. The term of the Agreement shall commence on the Effective Date and continue for the period listed in thereafter (the “Initial Term”). Upon expiration of the Initial Term, the Agreement shall automatically renew for successive periods of one (1) year (with each such term period, together with the Initial Term, being referred to as the “Term”) unless terminated by either Party upon thirty (30) days’ prior written notice to the other Party. The term for any specific Service (each a “Service Term”) shall be set forth in the applicable Service Order and may be different from, and/or extend beyond, the Term of this Agreement. To the extent that a Service Order extends beyond the Term of this Agreement, this Agreement shall continue to be applicable to that Service as if this Agreement were still in effect.

4        Default. A Party shall be in default under this Agreement if it: (i) materially violates any applicable law, regulation, statute, ordinance, code, or other legal requirement with respect to the Service and such violation is not remedied within ten (10) business days after written notice thereof, (ii) fails to perform any material obligation under this Agreement and such performance is not remedied within thirty (30) days after written notice thereof, or (iii) materially breaches a representation or warranty herein and such breach is not remedied within thirty (30) days after written notice thereof. In addition to any remedy applicable in law or in equity, the non-defaulting Party hereunder may terminate this Agreement upon the occurrence of default following the failure of the party alleged to be in material breach of this Agreement and where the party has failed to rectify the matter during the cure period.

 

5        Payment.  Customer shall pay the undisputed charges for the Services in accordance with rates, terms and conditions specified in the applicable Schedule and any Service Orders, as applicable.  Payments shall be sent to EC Communications PO Box 2607 Brentwood, TN 37024. 

5.1           In addition to the MRC and NRC set forth in the agreement, Customer also agrees to pay (i) unless and until Customer provides EC with satisfactory evidence of its exemption from such impositions, all applicable federal, state and local taxes (other than taxes on EC net income), imposed on, or with respect to, the Services and any CPE purchased by Customer from EC, (ii) all governmental fees and/or other surcharges in effect from time to time including, but not limited to, Universal Service Fund (USF), E-911, state TRS and payphone surcharges, required or permitted by applicable law, rule or regulation, to be charged to Customer, (iii) Administrative Services Fee, (iv) fees for special features or services requested by the Customer such as hunting, directory listing, 800 service, inside wiring/cabling and DMARC extension, and (v) any originating access charges or fees that are actually charged by the incumbent local exchange carrier to EC as a result of the unique configuration of the Service, (vi) and all other similar charges in effect from time to time, however designated. EC shall not increase the MRC set forth in the associated agreement more than five percent (5%) in each twelve (12) month calendar term during the Service Term.

 

6        Fraudulent Traffic. Customer is responsible for controlling access to, and use of, its own telephone and network facilities. Customer is responsible for payment for all undisputed charges for Service furnished to Customer by EC. This responsibility is not changed by virtue of any use, misuse, fraud, or abuse by Customer's employees, or members of the public of the Service(s) provided to Customer or Customer-provided systems, equipment, facilities, or services interconnected to the Service. EC will not issue credits for fraudulent calls passed to EC by Customer.

 

7        Billing Disputes. Customer shall notify EC of any billing disputes via email within thirty (30) days of the date on the invoice being disputed. Proper documentation shall be provided by Customer to EC supporting the basis for the billing dispute.  Notwithstanding any provision to the contrary, Customer’s failure to provide “proper documentation” shall not serve as a basis to deny a submitted billing dispute; rather, EC shall request, in writing, the specific information it seeks in order to allow EC to manage the disposition of the filed billing dispute. Billing disputes shall be sent to: EC Communications, Attn: Billing Department, PO Box 2607 Brentwood, TN 37024 or support@equinoxcommunications.com.

7.1   Payment for the undisputed amount is due in full as agreed. EC will resolve the dispute within thirty (30) days from receipt of the Billing Dispute Form and, in the event that the dispute is resolved in favor of EC, EC may invoice Customer for the unpaid disputed amount plus interest at rate set forth in this Agreement. In the event that the dispute is resolved in favor of Customer, EC shall provide, on Customer’s next invoice, a credit equal to the disputed amount, plus the amount of any overpayment made by Customer.

7.2   If Customer does not make payment of undisputed invoiced charges within the period specified in this Agreement, EC may suspend Service after it has given Customer written notice and ten (10) days to cure the nonpayment. EC may also suspend Service immediately should Customer exceed its credit limit. EC is not required to reinstate the Service to Customer until Customer has paid in full all undisputed charges then due, including any late fees and interest charges. At the time Customer makes payment in full of all undisputed charges, EC shall reinstate the Service within one (1) hour at no charge to Customer.

 

8        Late Payments. Any undisputed past due amounts are subject to a late charge in the amount of two (2%) per month compounded monthly, or the maximum rate allowable by law, whichever is less, in addition to any other remedies available to EC pursuant to this Agreement. If payment of undisputed charges is not received by the Due Date, EC may, at its option, elect to terminate or suspend the Services upon ten (10) business days’ written email notice to customer of said late payment.

 

9        Termination/Discontinuation of Service. EC reserves the right to suspend or discontinue the Service(s), or to terminate the Service(s), at any time in its sole discretion with sixty (60) business days advance written notice.  Late payments are 10 business day notices (section 8, Late Payments).  Bring Your own Bandwidth service(s) can be terminated immediately (section 2, Bring Your Own Bandwidth)

10     Taxes. Customer is responsible for, and shall pay, any applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of Customer’s subscription or use or payment for the Service. Such amounts are in addition to payment for the Service and will be billed to you as set forth in this Agreement. If you are exempt from payment of such taxes, you shall provide EC with an original certificate that satisfies applicable legal requirement EC to tax exempt status. Tax exemption will only apply from and after the date EC receives said certificate.

 

11     Representations and Warranties.

11.1          Representations of EC. EC represents and warrants to Customer that: (i) it has the right to provide Customer the Services specified herein, and that it is an entity, duly organized, validly existing and in good standing under the laws of its origin, with all of the requisite power to enter into and perform its obligations under this Agreement in accordance with its terms; (ii) all Services, and the rates therefor, shall be designed produced, installed, furnished and in all respects provided and maintained in conformance and compliance with federal, state and local laws, administrative and regulatory requirements and any other authorities having jurisdiction over the subject matter of this Agreement; (iii) EC has obtained and shall maintain all registrations and certifications which may be required by applicable law; (iv) either the Services provided hereunder are not subject to tariff regulation or, if any such Services are subject to tariff regulation, EC shall not file tariff revisions which would have the effect of increasing the prices charged to Customer hereunder for such Services without providing at least thirty (30) days’ written notice of its intent to file said tariff rates.

11.2 Representations of Customer. Customer represents and warrants that it is an entity, duly organized, validly existing and in good standing under the laws of its origin, with all of the requisite power to enter into and perform its obligations under this Agreement in accordance with its terms.

11.3 Disclaimer of Warranties. EC warrants that it will provide the Services with commercially reasonable skill and care and in a workmanlike manner and will use commercially reasonable efforts to restore Services in case of failure.  THE WARRANTIES AND REMEDIES EXPRESSLY STATED IN THIS AGREEMENT AND IN ANY SCHEDULE OR SERVICE ORDER ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY EC. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER‟S PURPOSES. EC DOES NOT WARRANT THAT USE OF THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. EC IS NOT RESPONSIBLE FOR HARDWARE OR SOFTWARE INSTALLED OR USED BY CUSTOMER OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET.

11.4 EC makes no representations, warranties or claims to Customer regarding the reliability or availability of Services. Additionally, EC is not liable for any delay or failure to provide Services including, at any time or from time to time, or any interruption or degradation of voice quality that is caused by, but in no way limited to, any of the following events:

(1) Act of an underlying carrier, service provider, vendor or other third party;

(2) Equipment, or facility failure, upgrade or modification;

(3) Events such as (but not limited to) acts of God; power outages; strikes; fire; war; riot; government actions;

(4) Equipment or facility shortage or relocation;

(5) Service, equipment, or facility failure caused by Customer’s loss of power;

(8) Outage of Customer’s Internet service provider or broadband service provider;

(9) Act of Customer or any third party using the Service or Device provided to Customer; or any other cause that is beyond EC’s direct control, including without limitation a failure of or defect of Device and/or failure of a communication link.

 

EC’s liability for (i) any failure or mistake; (ii) any claim with respect to EC’s performance or nonperformance hereunder or (iii) any EC act or omission in connection with the subject matter hereof shall in no event exceed Service charges with respect to the affected time period.

 

12     Indemnification.  Each Party shall indemnify, defend and hold harmless the other Party and its affiliates, employees, directors, officers, and agents, and their successors and assigns, from and against all claims, demands, actions, damages, liabilities, losses and expenses (including reasonable attorney’s fees) arising from the indemnifying Party’s breach of this Agreement, willful misconduct or gross negligence. EC shall indemnify, defend and hold harmless Customer and its affiliates, employees, directors, officers, and agents, and their successors and assigns, from and against all claims, demands, actions, damages, liabilities, losses and expenses (including reasonable attorney’s fees) arising from or relating to any claim by a third party that the Services or any equipment, products, hardware, software, materials, or other services provided to Customer by EC or its affiliates or subcontractors infringes upon the proprietary rights of such third party. Upon receipt of a notice of claim, action or demand that is subject to this Section, the Party receiving such notice shall notify the other Party promptly.

 

13     Limitation of Liability. IN NO EVENT SHALL EC‟S OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, REVENUE, SAVINGS OR PROFITS, HARM TO BUSINESS, DAMAGES ASSOCIATED WITH THE USE OR INABILITY TO USE THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT EC WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.

 

14     Confidentiality.

14.1            Confidential Information. In the course of performing its obligations hereunder, a Party may have access to certain confidential or proprietary information of the other Party (“Confidential Information”), including but not limited to: information about products, services, business plans, trade secrets, discoveries, ideas, designs, drawings, specifications, techniques, models, data, programs, documentation, processes, lists, know-how, marketing plans, customer information, and financial and technical information and other information known to be or should be known to be confidential information or designated by one of the Parties as confidential information.

 

14.2           Duty Not to Disclose. Neither Party shall disclose the other Party’s Confidential Information, directly or indirectly, under any circumstances or by any means to any third party without the express written consent of the other Party; provided however, that the obligations of this Section do not apply to any portion of the Confidential Information that is (i) public knowledge through no fault of the receiving Party prior to disclosure of it by the disclosing Party (as confirmed by the receiving Party’s records), or (ii) disclosed pursuant to the lawful requirements or formal request of a government agency. If the receiving Party is requested or legally compelled by a governmental agency to disclose any of the Confidential Information of the disclosing Party, the receiving Party agrees that it will provide the disclosing Party with prompt written notice of such requests so that the disclosing Party has the opportunity to pursue its legal and equitable remedies regarding potential disclosure.

 

14.3           Exercise of Care. Each Party shall exercise the highest degree of care in safeguarding the other Party’s Confidential Information against loss, theft, appropriation by a third party, or inadvertent disclosure and take all steps necessary to maintain such confidentiality.

14.4           Survival. The provisions of this Section shall survive the termination of this Agreement.

 

15      Regulatory Matters; Proper and Lawful Use of Service.

15.1           EC, upon written notice of not less than ten (10) days to Customer, may cancel or suspend the provision of the whole or any part of any Service which is determined to be a violation of, or no longer permitted under, any applicable law or regulation or of EC’s license in the jurisdiction (see section 9 Termination for exceptions and details). EC will make reasonable efforts to restore the Service, or provide a permitted functionally equivalent substitute on terms and conditions to be agreed upon by the Parties.

15.2           Customer will ensure that neither it nor its customers or other third party authorized end users interfere with or disrupt other users of the Services or of the EC Network.

15.3           Customer will use the Service only for the purposes for which it is designed and provided. Customer shall not change, hack or disrupt the Service.

15.4           The Parties shall comply with all laws applicable to this Agreement and to their respective businesses. Customer shall only resell or otherwise allow third party use of a Service in accordance with all requisite approvals or authorizations to resell from governments or regulators in the jurisdictions where Customer resells. Subject to the foregoing and except as set out in Service Addendum/Exhibit, resale and third party use of a Service for the purpose for which it was designed and provided is not prohibited by this Agreement, provided that EC’s performance obligations under this Agreement are solely to Customer, and not to any third party.

15.5           Customer is solely responsible for: (a) content of information and communications transmitted using the Services; and (b) use and publication of communications and/or information using the Services. Customer understands and agrees that EC is only an intermediary for the transmission of Customer and third party information, that EC plays a passive role as a conduit of information for Customer and third parties, and that EC neither initiates the transmission of information, selects the receivers of the transmission, nor modifies the information contained in the transmission.

15.6           Government Regulations.  You will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organi­zation of nations within whose jurisdiction you operate or do business.

 

16      Intellectual Property of EC.  The EC Services or software used to deliver the Service to Customer in conjunction with information, documents and materials on EC’s website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively the "Marks") of EC are the exclusive property of EC and nothing in this Agreement grants Customer the right to use any of such Marks. If Customer uses the Service through an interface device not provided by EC, Customer warrants and represents that it possesses all required rights, including software and/or hardware licenses, to use that device with the Service and Customer shall indemnify and hold harmless EC against all liability due to Customer’s use of such interface device with the Service.

 

17      Force Majeure.  NEITHER PARTY SHALL BE IN BREACH HEREOF BY REASON OF ITS DELAY IN THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, IF THAT DELAY IS CAUSED BY FIRE, FLOOD, EARTHQUAKE, THE ELEMENTS, LIGHTNING, EXPLOSION, WAR, ACT OF TERRORISM, STRIKES, EMBARGO, LABOR DISPUTE, UTILITY CURTAILMENTS, POWER FAILURES, GOVERNMENT REQUIREMENT, ACTS OF GOD OR NATURE, RIOTS, INCENDIARIES, INTERFERENCE BY CIVIL OR MILITARY AUTHORITIES, COMPLIANCE WITH GOVERNMENTAL PRIORITIES FOR MATERIALS, ACT OR OMISSION OF CARRIERS OR SUPPLIERS (OTHER THAN THE PARTIES THEMSELVES) COMPUTER VIRUSES OR WORMS, “DENIAL OF SERVICE‟ ATTACKS, HACKING ATTACKS (PROVIDING THAT THE PARTIES HAVE TAKEN REASONABLE STEPS TO PREVENT SUCH HACKING ATTACKS) AND ANY OTHER CAUSES BEYOND ITS REASONABLE CONTROL, WHETHER OR NOT SIMILAR TO THE FOREGOING. FAILURE OF EITHER PARTY TO PERFORM UNDER THIS AGREEMENT, BECAUSE OF THE OCCURRENCE OF AN EVENT OF FORCE MAJEURE LASTING LONGER THAN FORTY-FIVE DAYS WILL, UPON TWENTY- FOUR HOURS WRITTEN NOTICE TO THE OTHER PARTY, REPRESENT A GROUND FOR TERMINATION ONLY OF THE SERVICE AFFECTED BY SUCH EVENT.

 

18      Dispute Resolution.

18.1           Arbitration. Except for any action commenced by EC Communications to seek injunctive relief as set forth herein, any dispute between Customer and EC shall be arbitrated by the American Arbitration Association (“AAA”) or its successor, and the determination of the AAA or its successor shall be final and absolute. The arbitration shall be governed by the rules and regulations of the AAA or its successor, and the pertinent provisions of the laws of the Commonwealth of Tennessee relating to arbitration; with costs and attorneys’ fees awarded to the prevailing party. 

 

18.2   Submission to Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of the United States and the State of Tennessee, and venue for all proceedings relating to this Agreement and/or its subject matter shall be exclusively in Williamson County, Tennessee. Both parties hereby waive all objections to laying venue elsewhere.

 

18.3           Other Remedies. Nothing within this section shall be deemed to preclude either Party from seeking an equitable remedy in the venue named herein and in accordance with the choice of law provision stated herein.

 

19      Miscellaneous.

19.1           Notices. All notices, demands or requests made pursuant to, under or by virtue of this Agreement must be in writing and sent to the Party to which the notice, demand or request is being made by (i) by nationally recognized overnight courier delivery for next business day delivery, or (ii) by hand delivery, or to such other street address to which hand deliveries may be made as is specified by a Party by not less than five (5) days’ prior notice to the other Party given in accordance with the provisions of this Section. Any notice given in accordance with the provisions of this Section shall be deemed given on the date of initial delivery or initial attempted delivery if delivery is refused.

If to EC:          Equinox Communications, Inc.

                                Attn: President

                                3212 West End Avenue, Suite 303

                                Nashville, TN 37203

 

If to Customer: Contact, Business Name, and Address will be used

 

19.2           Entire Agreement; Modification. This Agreement, together with any Schedules or Service Orders, contain all the terms and conditions agreed upon between these Parties with respect to the subject matter hereof, and all prior agreements, understandings, representations and statements, oral or written, with respect to the subject matter hereof are merged into this Agreement. This Agreement shall not be modified or amended in any respect except by written instrument executed by or on behalf of the Parties in the same manner as this Agreement is executed, and specifically referencing that such written instrument is a modification or amendment of the Agreement.

19.3           Binding Effect. This Agreement shall be binding upon, and shall inure to the benefit of, the Parties hereto and their respective legal representatives, successors and permitted assigns.

19.4           No Waiver. No consent or waiver, express or implied, by any Party hereto or of any breach or default by another Party in the performance by the other of its obligations hereunder shall be valid unless in writing, and no such consent or waiver shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such other Party of the same or any other obligations of such Party hereunder. Failure on the part of any Party to complain of any act or failure to act of another Party or to declare another Party in default, irrespective of how long such failure continues, shall not constitute a waiver by such Party of its rights hereunder. The granting of any consent or approval following the Effective Date in any one instance by or on behalf of a Party shall not be construed to waive or limit the need for such consent or approval in any other or subsequent instance.

19.5           Third Parties. This Agreement is solely for the benefit of and shall be enforceable only by the Parties hereto and their respective legal representatives, successors and permitted assigns. No Person other than the Parties shall be entitled to bring any action to enforce any provision of this Agreement.

19.6           Severability. Each provision of this Agreement is intended to be severable. If any term or provision hereof shall be determined by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such provision shall be severed from this Agreement and shall not affect the validity of the remainder of this Agreement.

19.7           No Assignment. No Party to this Agreement shall be entitled to transfer or assign any of such Party’s rights or obligations under this Agreement with the prior written consent of the other Parties which consent may be withheld in the sole discretion of such other Parties. Neither Party may assign its rights nor obligations under this Agreement without prior written consent of the other Party except that EC may freely assign this Agreement to an affiliate Company, or subsidiary, and may freely assign its right to receive payments hereunder. Any assignment, transfer or other disposition which is in violation of this Section is void and of no force and effect.

19.8           Section Headings. All section headings, sections, subsections, paragraphs, subparagraphs, letters and other reference captions are solely for the purpose of facilitating convenient reference to this Agreement, shall not supplement, limit or otherwise vary the text of this Agreement in any respect, and shall be wholly disregarded when interpreting the meaning of any provisions hereof.

19.9          Exhibits and Schedules. Each and every exhibit and schedule referred to or otherwise mentioned in this Agreement that is attached to this Agreement is and shall be construed to be made a part of this Agreement by such reference or other mention at each point at which such reference or other mention occurs, in the same manner and with the same effect as if each exhibit and schedule were set forth in full at length every time it is referred to or otherwise mentioned.

19.10         Rights Cumulative. Except as expressly limited by the provisions of this Agreement, all rights, powers and privileges conferred hereunder shall be cumulative and not restrictive of those provided at law or in equity.

19.11          Survival. The provisions of this Agreement that are not fulfilled upon the expiration or earlier termination of this Agreement shall survive such expiration or earlier termination and shall remain in full force and effect.

19.12         Counterparts; Facsimile and Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which is an original, and all such counterparts shall constitute one and the same agreement. This Agreement may be executed by any Party using a facsimile or electronic signature, and such signature shall be binding and enforceable to the same extent as an original signature.

19.13         Relationship of the Parties. No joint venture, partnership or agency of any kind shall be deemed created by this Agreement. The Parties are independent contractors and shall not have, nor hold themselves out as having, the power or authority to bind or create liability on behalf of the other Party.

19.14 Publicity. Neither Party will publish or use any advertising, sales promotions, press releases or other publicity which uses the name, logo, trademarks or service marks of the other Party without prior written approval, provided either Party may list the other as a supplier/customer of the Services provided hereunder.