SINGLE POINT GLOBAL GENERAL TERMS AND CONDITIONS
VERSION: [1.7]
DEFINITIONS
“Administrative Website(s)” means https://my.spgportal.com or https://cms.singlepointglobal.com or any other website hosted or maintained by Single Point Global for use by its customers.
“Agreement” means the combination of Single Point Global’ s “General Terms and Conditions”), Product-Specific-Attachments (each, a “PSA”) defined within a Sales Order, the Sales Order, and any other additional terms specified within each of these documents. In the event of a conflict or inconsistency between the General Terms and Conditions, PSA, and a Sales Order, the following order of precedence shall apply (only to the extent of the conflict or inconsistency): (1) the terms of the Sales Order, (2) the terms of the PSA, (3) the terms of the Privacy Policy, (4) the terms of the Acceptable Use Policy, or other referenced terms, and (5) the terms of the General Terms and Conditions.
“Affiliate” means any entity that controls, is controlled by or is under common control with a Party.
“Confidential Information” means all information regarding either Party’s business that has been marked or is otherwise communicated as being “proprietary” or “confidential,” or that reasonably should be known by the receiving party to be proprietary or confidential information. Without limiting the generality of the foregoing, Confidential Information shall include, even if not marked, the Agreement, all SPG-Provided Licensed Software, all data provided by Customer or on Customer’s behalf, all data provided by Single Point Global, Inc, promotional materials, proposals, quotes, rate information, discount information, subscriber information, network upgrade information and schedules, network operation information (including without limitation information about outages and planned maintenance) and invoices, as well as the Parties’ communications regarding such items.
“Customer” means the company, corporation, or other entity named on the First Page of a Sales Order and shall also include its directors, officers, employees, agents, Affiliates, suppliers, licensors, successors, and assigns, as the case may be.
“Customer-Provided Equipment or “CE” means any and all facilities, equipment or devices supplied by Customer for use in connection with the Service(s).
“SPG-Provided Licensed Software” means computer software or code provided by Single Point Global or its representatives required to use the Service(s), including without limitation, associated documentation, and all updates thereto.
“Party” means a reference to Single Point Global or the Customer; and in the plural, a reference to both companies.
“Product-Specific-Attachment” or “PSA” means additional terms and conditions related to a specific product or service offered by Single Point Global.
“Renewal Term” means the term at which a sales order renews as defined in the Agreement.
“Sales Order” means a request for Single Point Global to provide the Service(s) to a Service Location(s) submitted by Customer to Single Point Global (a) on a then-current Single Point Global form designated for that purpose or (b) if available, through a Single Point Global electronic order processing system designated for that purpose.
“Service(s)” means a service or services provided by Single Point Global pursuant to a Sales Order. All Service(s) provided under the Agreement are for commercial use only.
“Service Commencement Date” means the date(s) on which Single Point Global first makes a Service available for use by Customer. A single Sales Order containing multiple Service Locations or Service(s) may have multiple Service Commencement Dates.
“Service Fee(s)” means the rate at which Service(s) is provided indicated on a Sales Order.
“Service Location(s)” means the Customer location(s) where Single Point Global provides the Service(s), to the extent the Customer owns, leases, or otherwise controls such location(s), as specified on a Sales Order.
“Service Term” means the duration of time (commencing on the Service Commencement Date) for which a given Service is ordered, as specified in a Sales Order.
“Single Point Global” means the Affiliate(s) of Single Point Global, Inc. that provide the Service(s) under the Agreement. References to Single Point Global in the Disclaimer of Warranties and Indemnification Articles shall also include its directors, officers, employees, agents, Affiliates, suppliers, licensors, successors, and assigns, as the case may be.
“Single Point Global Equipment” means any and all facilities, equipment or devices provided by Single Point Global or its authorized contractors at the Service Location(s) that are used to deliver any of the Service(s) including, but not limited to, all terminals, wires, modems, lines, circuits, ports, routers, gateways, switches, channel service units, servers, workstations, wireless, data service units, cabinets, and racks. Notwithstanding the above, inside telephone wiring within the Service Location, whether or not installed by Single Point Global, shall not be considered Single Point Global Equipment.
“Termination Charges” means charges that may be imposed by Single Point Global if, prior to the end of the applicable Service Term (a) Single Point Global terminates Service(s) for cause or (b) Customer terminates Service(s) without cause. Termination Charges are as set forth in each PSA, and are in addition to any other rights and remedies under the Agreement.
ARTICLE 1. CHANGES TO THE AGREEMENT TERMS
Single Point Global may change or modify the Agreement, and any related policies from time to time (“Revisions”) by posting such Revisions to the Single Point Global website available at http://www.singlepointglobal.com/legal (“Website”). The Revisions are effective upon posting to the Website. Customer will receive notice of the Revisions in the next applicable monthly invoice, email, or a letter sent to the Customer location. Customer shall have sixty (60) calendar days from the date of the notice of such Revisions to provide Single Point Global with written notice that the Revisions adversely affect Customer’s use of the Services. If after notice Single Point Global is able to verify such adverse effect but is unable to reasonably mitigate the Revision’s impact on such Service(s), then Customer may terminate the impacted Services without further obligation to Single Point Global beyond the termination date, including Termination Charges, if any. The foregoing shall be Customer’s sole and exclusive remedy and Single Point’s sole liability with respect to a termination of this Agreement as described in this Article 1.
ARTICLE 2. DELIVERY OF SERVICE
2.1 Orders. Customer shall submit to Single Point Global a properly completed Sales Order to initiate Service(s). A Sales Order shall become binding on the Parties (i) on the date that the Sales Order is fully executed by the Parties. When a Sales Order becomes effective it shall be deemed part of, and shall be subject to, the Agreement. Single Point Global will provide the Service(s) in accordance with the reasonable direction provided by Customer in order to minimize disruption to Customer’s business.
2.2 Access. In order to deliver certain Service(s) to Customer, Single Point Global may require access, right-of-way, conduit, and/or common room space (“Access”), both within and/or outside each Service Location. Customer shall provide an adequate environmentally controlled space and such electricity as may be required for installation, operation, and maintenance of the Single Point Global Equipment used to provide the Service(s) within the Service Location(s). Customer shall be responsible for securing and maintaining on an initial and ongoing basis during the applicable Service Term and/or Renewal Term, such Access within each Service Location unless Single Point Global has secured such access prior to this Agreement. In the event that Customer fails to secure or maintain such Access within a particular Service Location, Single Point Global will provide written notice to Customer of such failure, and Customer will be afforded at least thirty (30) days to remedy any such failure. If Customer fails to remedy the failure, after such cure period, Single Point Global may (if necessary to ensure safety or proper provision of Service) suspend (until such failure is remedied), or terminate, Service at such particular Service Location, without further liability, upon written notice to Customer. Service(s) Any other failure on the part of Customer to be ready to receive Service(s), or any refusal on the part of Customer to receive Service(s) or provide Access, shall not relieve Customer of its obligation to pay charges for the Services.
2.3 Single Point Global Equipment. At any time, Single Point Global may remove or change Single Point Global Equipment in its sole discretion in connection with providing the Service(s), provided such removal or change does not adversely affect the provision or use of Service(s). Customer shall not move, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any Single Point Global Equipment or permit others to do so, and shall not use the Single Point Global Equipment for any purpose other than that authorized by the Agreement. Single Point Global shall maintain Single Point Global Equipment in good operating condition during the term of this Agreement; provided, however, that such maintenance shall be at Single Point Global’s expense only to the extent that it is related to and/or resulting use of the Single Point Global Equipment in accordance with the terms of the Agreement. Customer is responsible for damage to, or loss of, Single Point Global Equipment caused by its acts or omissions, and its noncompliance with this Article, or by fire, theft or other casualty at the Service Location(s), unless caused by the gross negligence or willful misconduct of Single Point Global.
2.4 Service Acceptance. Except as may otherwise be identified in the applicable PSA, the Service Commencement Date shall be the date Single Point Global completes installation and notifies the Customer that Service(s) within a Sales Order is available for use.
2.5 Amendments. An amendment to the Sales Order will be issued if the installation quantity for Services installed is different from the Sales Order. Customer will have a period of fifteen (15) days from the date of receipt of this amendment to review and either accept or dispute the changes for Services. Failure to respond within the specified fifteen (15) day period will result in the Customer’s automatic acceptance of the changes and the data presented shall be considered accurate and binding under the terms of the Agreement.
2.6 Administrative Website(s). Single Point Global may integrate Customer authentication utilizing Active Directory, Office 365, G-Suite, Okta, or furnish Customer with one or more user identifications and/or passwords for use on the administrative portion of the Administrative Website(s). Both Parties shall be responsible for the confidentiality and use of such user identifications and/or passwords provided and shall immediately notify the other Party if there has been an unauthorized release, use or other compromise of any user identification or password. In addition, Customer agrees that its authorized users shall keep confidential and not distribute any information or other materials made available by the Administrative Website(s). Customer shall be solely responsible for all acts or omissions and all use of the Administrative Website by its authorized users. Single Point Global shall be entitled to rely on all Customer uses of and submissions to the Administrative Website as authorized by Customer. Single Point Global shall not be liable for any loss, cost, expense or other liability if and to the extent it is caused by Customer’s use of the Administrative Website.
ARTICLE 3. BILLING AND PAYMENT
3.1 Charges. Except as otherwise provided in the Sales Order or applicable PSA, Customer shall pay Single Point Global one hundred percent (100%) of the Low Voltage Cabling Fee(s), Consulting Fee(s), Hardware Fee(s), and the Setup Fee(s) (if any) prior to the installation of the Service(s) or Sales Order(s). Customer further agrees to pay all charges associated with the Service(s), as set forth in the applicable PSA, Sales Order(s) and validly invoiced from Single Point Global.
3.2 Payment of Bills. Payment is due within thirty (30) days of the invoice date. Subject to Section 3.6, any charges not paid to Single Point Global within such period will be considered past due. If a Service Commencement Date is not the first day of a billing period, Customer’s first monthly invoice shall include any pro-rated charges for the Service(s), from the Service Commencement Date to the start of the next billing period.
3.3 Partial Payment. Partial payment of any bill will be applied to the Customer’s outstanding charges in amounts and proportions solely as determined by Single Point Global. No acceptance of partial payment(s) by Single Point Global shall constitute a waiver of any rights to collect the full balance owed under the Agreement.
3.4 Taxes and Fees. Customer shall be responsible for the payment of any and all applicable local, state, and federal taxes or fees (however designated). Customer also will be responsible to pay taxes that become applicable during the Service Term.
3.5 Government-Related Costs, Audits, Subpoena, or Summons. In the event that the Single Point Global receives Summons or a request, or is required, to disclose any Customer confidential information or data under a subpoena, court order, statute, Law, rule, regulation or inquiry issued by a court of competent jurisdiction or by a judicial or administrative agency, legislative body or committee, or self-regulatory organization (each a “Legal Request”), Single Point Global shall, as permitted by law, promptly notify Customer in writing of such demand for disclosure so that Customer may seek to avoid or minimize the Legal Request or obtain an appropriate protective order or other relief, or in the discretion of Customer, waive compliance with the provisions of this Agreement. If so requested, Single Point Global shall reasonably cooperate in the defense against any Legal Request utilizing our Professional Services per hour rate at three hundred dollars per hour ($300.00). If Customer is unable to obtain or does not seek a protective order and Single Point Global is legally required to disclose such Customer confidential information or data, Single Point Global will disclose only that portion of the requested confidential information or data that it is required to disclose. Single Point Global shall have no liability or responsibility for content received or distributed by Customer or its users through the Service, and Customer shall indemnify, defend, and hold Single Point Global and its directors, officers, employees, agents, subsidiaries, affiliates, successors, and assigns harmless from any and all claims, damages, and expenses whatsoever (including reasonable attorneys’ fees) arising from such content attributable to Customer or its users. For the avoidance of doubt, the monitoring of data described in this Section 3.9.
3.6 Disputed Invoice. If Customer disputes any portion of an invoice by the due date, Customer may withhold the disputed charges while paying timely and in full any undisputed portions. Customer shall provide its rationale for the dispute in writing to SPG on or before the invoice due date and the Parties shall negotiate in good faith to resolve any billing dispute. Single Point Global will refund/credit all valid disputes resolved in Customer’s favor as of the date the disputed charges first appeared on the Customer’s invoice.
3.7 Past-Due Amounts. Except for disputed portions of an invoice withheld by Customer pursuant to Section 3.6, above, any amounts not paid by Customer timely and in full in accordance with the Agreement shall be considered to be past due. Any payment not made when due will be subject to a late charge of 1.5% per month or the highest rate allowed by law on the unpaid invoice, whichever is lower.
3.8 Rejected Payments. Except to the extent otherwise prohibited by law, Customer will be assessed a service charge up to the full amount permitted under applicable law for any check or other instrument used to pay for the Service(s) that has been rejected by the bank or other financial institution.
3.9 Fraudulent Use of Services. Customer is responsible for all charges attributable to Customer with respect to the Service(s), even if incurred as the result of fraudulent or unauthorized use of the Service(s) unless the fraudulent or unauthorized use is due to Single Point Global. Single Point Global may detect or report unauthorized or fraudulent use of Services to Customer. Single Point Global reserves the right to restrict, suspend or discontinue providing any Service in the event of fraudulent, or suspected fraudulent, use of a Service ordered by Customer.
ARTICLE 4. TERM; REVENUE COMMITMENT
4.1 Agreement Term. Upon execution of the Agreement, Customer shall be allowed to submit Sales Orders to Single Point Global during the term referenced on the General Terms and Conditions Cover Page of the first Sales Order (“Initial Agreement Term”). After the expiration of the Initial Agreement Term, Single Point Global may continue to accept Sales Orders from Customer under the Agreement or require the Parties to execute a new Agreement. This Agreement shall continue in effect until the expiration or termination date of the last Sales Order entered under the Agreement, unless terminated earlier in accordance with the Agreement.
4.2 Sales Order Term. The applicable Service shall be set forth in the Sales Order. Unless otherwise stated, if a Sales Order does not specify a term of service, the Service Term shall be three (3) years from the Service Commencement Date.
4.3 Adjustments. Effective December 31st of each year, Single Point Global may modify the monthly recurring charge for all Service(s) each year by the greater of (i) six percent (6%) or (ii) the cumulative increase in the U.S. Consumer Price Index, All Urban Consumers (CPI-U), U.S. City Average, Published by the United States Department of Labor, Bureau of Labor Statistics for the preceding twelve (12) month period. In the event the Bureau of Labor Statistics (or any successor organization) no longer publishes the CPI-U, Single Point Global may, in its reasonable discretion, redesignate a replacement index.
4.4 Sales Order Renewal.At the end of the Service Term, unless otherwise specified in the Sales Order, each Sales Order will automatically renew for the same duration. Either Party can prevent this automatic renewal by providing written notice of non-renewal at least 90 days, but no more than 120 days, before the end of the Service Term or the current Renewal Term.
ARTICLE 5. TERMINATION WITHOUT FAULT; DEFAULT
5.1 Termination for Convenience. Notwithstanding any other term or provision in this Agreement, Customer shall have the right, in its sole discretion, to terminate any or all Sales Order(s) at any time during the Service Term(s), for any reason or for no reason, upon ninety (90) days’ prior written notice to Single Point Global and subject to payment to Single Point Global of all outstanding amounts due for the Service(s) up to the date of termination including any Termination Fee(s) as defined in the PSA(s). Upon such termination, Customer shall coordinate in good faith the prompt return of all applicable Single Point Global Equipment.
5.2 Termination for Failure to Order Service. Single Point Global may terminate the Agreement if Customer does not order any Service under a Sales Order for twelve (12) consecutive months or longer, during which time Customer is also not receiving Service(s) under any existing Sales Order.
5.3 Termination for Cause. If either Party breaches any material term of the Agreement (including any specific PSA), other than a payment term, and the breach continues un-remedied for thirty (30) days after the breaching party receives written notice of default, the non-breaching Party may terminate for cause any Sales Order materially affected by the breach. If Customer is in breach of a payment obligation and fails to make such payment in full within thirty (30) days after receipt of written notice of default, Single Point Global may, at its option, terminate the affected Sales Order(s), suspend Service under the affected Sales Order(s), and/or require a deposit, advance payment, or other satisfactory assurances in connection with any or all Sales Orders as a condition of continuing to provide Service, except that Single Point Global will not take any such action as a result of Customer’s non-payment of a charge subject to a timely billing dispute, unless Single Point Global has reviewed the dispute and determined in good faith that the charge is correct. A Sales Order may be terminated by either Party immediately upon written notice if the other Party has become insolvent or involved in liquidation or termination of its business, or adjudicated bankrupt, or been involved in an assignment for the benefit of its creditors. Termination by either Party of a Sales Order does not waive any other rights or remedies that it may have under this Agreement. The non-defaulting Party shall be entitled to all available legal and equitable remedies for such breach.
5.4 Effect of Expiration/Termination of a Sales Order.
Upon the expiration or termination of a Sales Order for any reason:
1. Single Point Global shall promptly (but in any event, no later than thirty (30) business days after the date of termination) return to Customer (in a mutually agreeable format) any and all Customer data, files, electronic messages and other information stored on Single Point Global’ s servers or systems and shall only after such return of information is completed, be permitted to delete it from Single Point Global’ s systems;
2. Single Point Global shall disconnect the applicable Service(s);
3. If Customer has terminated the Sales Order prior to the expiration of the Service Term for convenience, or if Single Point Global has terminated the Sales Order prior to the expiration of the Service Term as a result of material breach by Customer, Single Point Global may assess and collect from Customer applicable Termination Charges (if any);
4. Customer shall, permit Single Point Global to retrieve from the applicable Service Location any and all Single Point Global Equipment. If Customer fails to permit such retrieval or if the retrieved Single Point Global Equipment has been damaged and/or destroyed other than by Single Point Global or its agents, normal wear and tear excepted, Single Point Global may invoice Customer for the manufacturer’s list price of the relevant Single Point Global Equipment, or in the event of damage to the retrieved Single Point Global Equipment that is less costly to repair than the replacement value, the cost of repair, which amounts shall be immediately due and payable; and
5. Customer’s right to use applicable SPG-Provided Licensed Software shall automatically terminate, and Customer shall be obligated to return all SPG-Provided Licensed Software to Single Point Global.
5.5 Resumption of Service. If a Service has been discontinued by Single Point Global for cause and Customer requests that the Service be restored, Single Point Global shall have the sole and absolute discretion to restore such Service. At Single Point Global’ s option (and subject to mutual agreement by the Parties in writing), deposits, advanced payments, nonrecurring charges, and/or an extended Service Term may apply to restoration of Service.
ARTICLE 6. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES; WARNINGS
6.1 Limitation of Liability. THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY AND ALL LOSSES, DAMAGES AND CAUSES ARISING OUT OF THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE PERFORMANCE OF SERVICE, AND NOT OTHERWISE LIMITED HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED DIRECT DAMAGES EQUAL TO THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER TO SINGLE POINT GLOBAL DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT FOR WHICH DAMAGES ARE CLAIMED. THIS LIMITATION SHALL NOT APPLY TO SINGLE POINT GLOBAL’S INDEMNIFICATION OBLIGATIONS AND CLAIMS FOR DAMAGE TO PROPERTY AND/OR PERSONAL INJURIES (INCLUDING DEATH) ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SINGLE POINT GLOBAL WHILE ON THE CUSTOMER SERVICE LOCATION. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, COVER, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT. NOTHING HEREIN IS INTENDED TO LIMIT CUSTOMER’S LIABILITY FOR AMOUNTS OWED FOR THE SERVICE(S), FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY SINGLE POINT GLOBAL OR FOR TERMINATION CHARGES.
6.2 Disclaimer of Warranties. Service(s) shall be provided pursuant to the terms and conditions in the applicable PSA and Service Level Agreement therein, if any, and are in lieu of all other warranties, express, implied or statutory, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. TO THE MAXIMUM EXTENT ALLOWED BY LAW, SINGLE POINT GLOBAL EXPRESSLY DISCLAIMS ALL SUCH EXPRESS, IMPLIED AND STATUTORY WARRANTIES.
1. Without limiting the generality of the foregoing, and except as otherwise identified in a PSA or Service Level Agreement, Single Point Global does not warrant that the Service(s), Single Point Global Equipment, or SPG-Provided Licensed Software will be uninterrupted, error-free, or free of latency or delay, or that the Service(s), Single Point Global Equipment, or SPG-Provided Licensed Software will meet customer’s requirements, or that the Service(s), Single Point Global Equipment, or SPG-Provided Licensed Software will prevent unauthorized access by third parties.
2. Except in the case of Single Point Global’ s negligent act or omission, in no event shall Single Point Global, be liable for any loss, damage or claim arising out of or related to: (i) the loss or damage to stored, transmitted, or recorded data, files, or software; (ii) any negligent act or omission of Customer, its users or third parties; (iii) interoperability, interaction or interconnection of the Service(s) with applications, equipment, Service(s) or networks that have not been approved by Single Point Global and were provided by Customer or third parties; or (iv) loss or destruction of any Customer hardware, software, files or data resulting from any virus or other harmful feature or from any attempt to remove it, except if and to the extent that such loss or destruction was the result of Single Point Global’ s negligence or failure to maintain up to date virus and malware protections consistent with prevailing industry standards. Service(s).
6.3 Remedies. Customer’s sole and exclusive remedies are expressly set forth in the Agreement. Certain of the above exclusions may not apply if the state in which a Service is provided does not allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion of incidental or consequential damages. In those states, the liability of Single Point Global is limited to the maximum extent permitted by law.
ARTICLE 7. INDEMNIFICATION
7.1 Single Point Global’ s Indemnification Obligations. Single Point Global shall indemnify defend, and hold harmless Customer from and against all third-party claims, demands, actions, causes of actions, damages, liabilities, losses, and expenses (including reasonable attorneys’ fees) (“Claims”) incurred as a result of: (1) infringement of U.S. patent or copyright relating to the Single Point Global Equipment or Single Point Global SPG-Provided Licensed Software hereunder; and (2) damage to tangible personal property or real property, and personal injuries (including death) arising out of the negligence or willful misconduct of Single Point Global while working on the Customer Service Location. Single Point Global’s representatives shall use due care to observe all health, safety, environmental and other policies applicable to visitors on the Customer’s premises.
7.2 Customer’s Indemnification Obligations. Customer shall indemnify, defend, and hold harmless Single Point Global from and against all third party Claims that would not otherwise have arisen but for (1) Customer’s libel, slander, infringement of copyright, or unauthorized use of trademark, trade name, or service mark in communications via the Service; or (2) U.S. patent infringement due to Customer’s unauthorized combining or connection of CE not approved or authorized by Single Point Global or (3) Customer’s use of the Service in a manner not permitted or reasonably contemplated under this Agreement. e
7.3 Indemnification Procedures. The indemnifying party agrees to defend the indemnified party for any Claim that is the subject of this Article 7. The indemnified party agrees to notify the indemnifying party promptly, in writing, of any Claims, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Claim. The indemnifying party shall assume the defense of any Claim with counsel reasonably satisfactory to the indemnified party. The indemnified party may employ its own counsel in any such case, and shall pay such counsel’s fees and expenses. The indemnifying party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the indemnified party to take or refrain from taking any action or purports to obligate the indemnified party, then the indemnifying party shall not settle such claim without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed.
ARTICLE 8. SOFTWARE & SERVICE(S)
8.1 License. If and to the extent that Customer requires the use of SPG-Provided Licensed Software in order to use the Service supplied under any Sales Order, Customer shall have a personal, nonexclusive, nontransferable, and limited license to use such SPG-Provided Licensed Software in object code only and solely to the extent necessary to use the applicable Service during the corresponding Service Term. All SPG-Provided Licensed Software provided to Customer, and each revised version thereof, is licensed (not sold) to Customer by Single Point Global only for use in conjunction with the Service and solely in accordance with the terms and conditions of this Agreement. Customer may not claim title to, or an ownership interest in, any SPG-Provided Licensed Software (or any derivations or improvements thereto), and Customer shall execute any documentation required by Single Point Global, including, without limitation, end-user license agreements for the SPG-Provided Licensed Software. Single Point Global and its suppliers shall retain ownership of the SPG-Provided Licensed Software, and no rights are granted to Customer other than a license to use the SPG-Provided Licensed Software under the terms expressly set forth in this Agreement.
8.2 Restrictions. Customer agrees that it shall not: (i) copy the SPG-Provided Licensed Software (or any upgrades thereto or related written materials) except for emergency back-up purposes or as permitted by the express written consent of Single Point Global; (ii) reverse engineer, decompile, or disassemble the SPG-Provided Licensed Software; (iii) sell, lease, license, or sublicense the SPG-Provided Licensed Software; or (iv) create, write, or develop any derivative software or any other software program based on the SPG-Provided Licensed Software.
8.3 Updates. Customer acknowledges that the use of Service(s) may periodically require updates and/or changes to certain SPG-Provided Licensed Software incorporated in the Single Point Global Equipment or CE. If Single Point Global has agreed to provide updates and changes, such updates and changes may be performed remotely or on-site by Single Point Global, at Single Point Global’s sole option. Customer hereby consents to, and shall provide free access for, such updates deemed reasonably necessary by Single Point Global. If Customer fails to agree to such updates, Single Point Global will be excused from the Service Level Agreement and other performance credits that would have applied to the applicable updates..
8.4 Export Law and Regulation. Customer acknowledges that any products, software, and technical information (including, but not limited to, Service(s) and training) provided pursuant to the Agreement may be subject to U.S. export laws and regulations. Customer agrees that it will not use distribute, transfer, or transmit the products, software, or technical information (even if incorporated into other products) except in compliance with U.S. export regulations. If requested by Single Point Global, Customer also agrees to sign written assurances and other export-related documents as may be required for Single Point Global to comply with U.S. export regulations.
8.5 Ownership of Telephone Numbers and Addresses. Customer acknowledges that use of certain Service(s) does not give it any ownership or other rights in any telephone number or Internet/on-line addresses provided, including but not limited to Internet Protocol (“IP”) addresses, e-mail addresses and web addresses.
8.6 Intellectual Property Rights in the Service(s). Title and intellectual property rights to the Service(s) are owned by Single Point Global, its agents, suppliers or affiliates or their licensors or otherwise by the owners of such material. The copying, redistribution, bundling or publication of the Service(s), in whole or in part, without express prior written consent from Single Point Global or other owner of such material, is prohibited.
ARTICLE 9. CONFIDENTIAL INFORMATION AND PRIVACY
9.1 Disclosure and Use. All Confidential Information disclosed by either Party shall be kept by the receiving party in strict confidence and shall not be disclosed to any third party without the disclosing party’s express written consent. Notwithstanding the foregoing, such information may be disclosed (i) to the receiving party’s employees, affiliates, and agents who have a need to know for the purpose of performing this Agreement, using the Service(s), rendering the Service(s), and marketing related products and Service(s) (provided that in all cases the receiving party shall take appropriate measures prior to disclosure to its employees, affiliates, and agents to assure against unauthorized use or disclosure); or (ii) as otherwise authorized by this Agreement. Each Party agrees to treat all Confidential Information of the other in the same manner as it treats its own proprietary information, but in no case using a degree of care less than a reasonable degree of care.
9.2 Exceptions. Notwithstanding the foregoing, each Party’s confidentiality obligations hereunder shall not apply to information that: (i) is already known to the receiving party without a pre-existing restriction as to disclosure; (ii) is or becomes publicly available without fault of the receiving party; (iii) is rightfully obtained by the receiving party from a third party without restriction as to disclosure, or is approved for release by written authorization of the disclosing party; (iv) is developed independently by the receiving party without use of the disclosing party’s Confidential Information; or (v) is required to be disclosed by law or regulation, provided that the receiving party reasonably assists the disclosing party in obtaining a protective order with respect to such information.
9.3 Publicity. The Agreement provides no right to use any Party’s or its affiliates’ trademarks, service marks, or trade names, or to otherwise refer to the other Party in any marketing, promotional, or advertising materials or activities, except that Single Point Global shall have the right to list Customer as a customer on its Website and in marketing materials. Neither Party shall issue any publication or press release relating to, or otherwise disclose the existence of, the terms and conditions of any contractual relationship between Single Point Global and Customer, except as permitted by the Agreement or otherwise consented to in writing by the other Party.
9.4 Remedies. Notwithstanding any other Article of this Agreement, the non-breaching Party shall be entitled to seek equitable relief to protect its interests pursuant to this Article 9, including, but not limited to, injunctive relief.
9.5 Survival of Confidentiality Obligations. The obligations of confidentiality and limitation of use described in this Article 9 shall survive the expiration and termination of the Agreement for a period of two (2) years (or such longer period as may be required by applicable law).
ARTICLE 10. Use of Service; Use and Privacy Policies
10.1 Prohibited Uses and Single Point Global Use Policies. Customer is prohibited from using, or permitting the use of, any Service (i) for any purpose in violation of any law, rule, regulation, or policy of any government authority; (ii) in violation of any Use Policy (as defined below); (iii) for any use inconsistent with or not authorized by this Agreement or as to which Customer has not obtained all required government approvals, authorizations, licenses, consents, and permits; or (iv) to interfere unreasonably with the use of Single Point Global service by others. Customer is solely responsible for assuring that any and all of its users comply with the provisions of the Agreement. Single Point Global reserves the right to act immediately and without notice to suspend the Service(s) and/or to remove from the Service(s) any information transmitted by or to Customer or users, if Single Point Global determines that such use is prohibited as identified herein or otherwise in violation of this Agreement, or information does not conform with the requirements set or Single Point Global reasonably believes that such use or information may violate any laws, regulations, or written and electronic instructions for use. Service(s)
10.2 Privacy Note Regarding Information Provided to Third Parties. Single Point Global is not responsible for any information provided by Customer to third parties in connection with the Service(s). Such information is not subject to the privacy provisions of this Agreement. Customer assumes all privacy and other risks associated with Customer’s provision of personally identifiable information to third parties via the Service(s).
10.3 Prohibition on Resale. Customer may not sell, resell, sublease, assign, license, sublicense, share, provide, or otherwise utilize in conjunction with a third party (including, without limitation, in any joint venture or as part of any outsourcing activity) the Services or any component thereof.
10.4 Use of Documentation. By using documentation provided by Single Point Global, Customer acknowledges and agree that Single Point Global shall not be held liable for any damages, losses, or claims arising from its use. Customer understands that the documentation is provided “as is” without any warranties, express or implied, including but not limited to the accuracy, completeness, or suitability for any particular purpose. Customer will assume full responsibility for any modifications, adaptations, or implementations of the documentation and agree to indemnify and hold Single Point Global harmless from any and all liabilities, costs, and expenses incurred as a result of your use of the documentation.
10.5 Violation. Any breach of this Article 10 shall be deemed a material breach of this Agreement. In the event of such material breach, Single Point Global shall have the right to restrict, suspend, or terminate immediately any or all Sales Orders, without liability on the part of Single Point Global, and then to notify Customer of the action that Single Point Global has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement.
ARTICLE 11. MISCELLANEOUS TERMS
11.1 Force Majeure. Neither Party (and in the case of Single Point Global, Single Point Global affiliates and subsidiaries) shall be liable to the other Party for any delay, failure in performance, loss, or damage to the extent caused by force majeure conditions such as acts of God, fire, explosion, power blackout, cable cut, acts of regulatory or governmental agencies, epidemic or pandemic, or other causes beyond the Party’s reasonable control, except that Customer’s obligation to pay for Service(s) provided under the Agreement shall not be excused by Force Majeure. Changes in economic, business or competitive condition shall not be considered force majeure events.
11.2 Assignment or Transfer. Customer shall not assign any right, obligation or duty, in whole or in part, nor of any other interest hereunder, without the prior written consent of Single Point Global, which shall not be unreasonably withheld. All obligations and duties of either Party under this Agreement shall be binding on all successors in interest and assigns of such Party. Nothing herein is intended to limit (i) Single Point Global’s right to assign or transfer this Agreement or otherwise use third-party consultants and contractors to perform Service(s) under one (1) or more Sales Orders; or (ii) either Party’s right to assign, without the other Party’s consent, this Agreement to an affiliate or subsidiary; or to the aquiror by purchase or merger of a controlling interest in such Party’s equity or voting interests. Any attempted assignment in violation of this Section 11.2 shall be void ab initio.
11.3 Notices. Any notice sent pursuant to the Agreement shall be deemed given and effective when sent by facsimile (confirmed by first-class mail), when sent by email to a Party’s designated email address; or when delivered by overnight express or other express delivery service, in each case as follows: (i) with respect to Customer, to the address set forth on the Cover Page of any Sales Order; or (ii) with respect to Single Point Global, to: CEO, Single Point Global, 21720 Red Rum Drive, Suite 122, Ashburn, VA 20147.
11.4 Entire Understanding. The Agreement constitutes the entire understanding of the Parties related to the subject matter hereof. The Agreement supersedes all prior and contemporaneous agreements, proposals, representations, statements, or understandings, whether written or oral, concerning the Service(s) or the Parties’ rights or obligations relating to Service(s). Any prior representations, promises, inducements, or statements of intent regarding the Service(s) that are not embodied in the Agreement are of no effect. No subsequent agreement among the Parties concerning Service shall be effective or binding unless it is made in writing and executed by authorized representatives of the Parties.
11.5 Construction. In the event that any portion of the Agreement is held to be invalid or unenforceable, the Parties shall replace the invalid or unenforceable portion with another enforceable provision that, as nearly as possible, reflects the original intention of the Parties, and the remainder of the Agreement shall remain in full force and effect.
11.6 Choice of Law. This agreement shall be governed by and construed in accordance with the internal, substantive laws of the state of Delaware, except to the extent superseded by federal law.
11.7 No Third Party Beneficiaries. This Agreement does not expressly or implicitly provide any third party (including users) with any remedy, claim, liability, reimbursement, cause of action, or other right or privilege.
11.8 Parties’ Authority to Contract. The persons whose signatures appear below are duly authorized to enter into the Agreement on behalf of the Parties name therein.
11.9 No Waiver; Etc. No failure by either Party to enforce any right(s) hereunder shall constitute a waiver of such right(s). This Agreement may be executed in counterpart copies.
11.10 Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
11.11 Article Headings. The article headings used herein are for reference only and shall not limit or control any term or provision of this Agreement or the interpretation or construction thereof.
11.12 Compliance with Laws. Each of the Parties agrees to comply with all applicable local, state and federal laws and regulations and ordinances in the performance of its respective obligations under this Agreement.
11.13 Third Party Providers SLA’s. Service(s) resold by SPG but delivered by a third party provider are subject to the SLA’s provided by the third party. SPG will not provide any compensation or credit for any outage, inaccessibility, or trouble due to a third party product or service unless directly caused by the act or omission of SPG or its affiliates.
