General Terms and Conditions Version: February 21, 2023
GENERAL TERMS AND CONDITIONS
These General Terms and Conditions (these “Terms”) are entered into by and between MarketSpark Inc., a Delaware corporation (“MarketSpark”), and the contracting party identified on the Service Order Form (“Customer”) and governs the provision and use of MarketSpark’s equipment, software and services related to the conversion of plain old telephone service (“POTS”) to reliable cellular connections. These Terms become binding on the parties upon the execution of a service order form by MarketSpark and Customer (the “Service Order Form” and together with these Terms, this “Agreement”). IN THE EVENT OF ANY CONFLICT BETWEEN THESE TERMS AND THE TERMS OF THE SERVICE ORDER FORM, THESE TERMS SHALL CONTROL UNLESS THE SERVICE ORDER FORM EXPRESSLY OVERRULES A SPECIFIED SECTION HEREIN.
1. Provision of Equipment and Services. Customer agrees to acquire from MarketSpark the Services and Equipment (as defined below), which may include accompanying software (“Software”), each identified on the applicable Service Order Format the prices set forth in the Service Order Form.
1.1 Equipment. MarketSpark shall provide the necessary hardware (together with applicable Software, “Equipment”) to deliver the Services. Customer acknowledges that the Equipment is provided exclusively for use by Customer. Customer may not sell or transfer possession of any Equipment except as may be provided in this Agreement or as otherwise mutually agreed to by the parties in writing. Any attempted sale or transfer in violation of this Agreement shall be null and void. In addition, Customer acknowledges that any unauthorized sale may result in the immediate voiding of any warranties that may have been passed through to Customer. Certain equipment required to provide the Services may be supplied by Customer and shall include, but not be limited to, the following: routers, switches, firewalls, digital phones, faxes, signal boosting equipment, and fire panels, among other equipment (such Customer-supplied equipment is collectively the “CPE”).
2. Services. For purposes of POTS replacement, MarketSpark shall provide certain services to Customer (“Services”), which shall include but not be limited to the following:
2.1. POTS replacement line(s) at each of the Customer locations as selected and identified by Customer and specified on the Service Order Form (“Customer Locations”).
2.2. MarketSpark will install the Services up to the demarcation point(s) (each, a “Dmarc”) at the Customer Locations. Dmarcs are defined as Customer’s main distribution frame (MDF), intermediate distribution frame (IDF), or computer or server room and may vary by location. Where MarketSpark is provisioning Services to a Dmarc at a Customer Location, Customer is responsible for providing all necessary and/or reasonably requested access rights, space, and power for MarketSpark’s facilities and equipment at the Dmarc. If MarketSpark is unable to access the required Customer Location at the agreed upon date and time, MarketSpark is under no obligation to provide the Services.
2.2.1. For clarity, MarketSpark’s obligation is to provide a dial tone to the Dmarc. Any additional installation services or coordination with other service providers or personnel may result in additional fees, which shall be approved by Customer in advance and subject to these Terms. MarketSpark’s technical support team is available for remote services at no additional charge to resolve connectivity with on-premises equipment.
2.3. Setup and installation Services provided by MarketSpark to install Equipment in the Customer Locations as provided in this Agreement.
2.4. Testing of new POTS replacement line(s) to the Dmarc(s).
2.5. Monitoring, management, and, solely for Equipment not owned by Customer, break‐fix Services for the Equipment installed by MarketSpark in the Customer Locations.
2.6. Access to MarketSpark’s portal for the purposes of monitoring Services at the Customer Locations and making changes such as call forwarding and other changes allowed using the portal.
2.7. Access to MarketSpark technical support. MarketSpark is not responsible for the timeline to port the Customers’ existing numbers. Although carriers are required to transfer their customers’ numbers upon request, execution time varies and is beyond the control of MarketSpark.
3. Fees; Taxes; Invoices.
3.1. Fees. Customer shall pay the Equipment Fees and Service Fees set forth in the Service Order Form, and all applicable taxes and surcharges that may be authorized or required under laws, regulations, or tariffs in connection therewith (collectively, the “Fees”) in accordance with the payment terms set forth in the Service Order Form.
3.2. Taxes. Customer will be responsible for all taxes, regulatory costs, fees, surcharges, and assessments of any kind, including penalties, fines, interest, license and registration fees, electronic waste, recycling and other environmental fees, and sales, use and personal property taxes (without proration), whether imposed on MarketSpark or Customer or any of their respective affiliates, or on the Equipment, the Services, or any related instrument, whether any of the foregoing amounts are assessed or arise during the Term or thereafter and are fairly attributable to the Term excluding, however, taxes based on MarketSpark’s income (collectively, “Taxes”). Customer will pay to MarketSpark (or the relevant taxing authority if instructed in writing by MarketSpark) any and all Taxes.
3.3. Invoicing. MarketSpark will invoice Customer monthly for Products and Services, along with applicable Taxes, itemizing the Fees by Customer Location and by type of Fee. Invoices shall be due and payable by Customer in accordance with the payment terms set forth in the Service Order or as otherwise agreed upon in writing by the parties.
4. Term and Termination.
4.1.1. This Agreement shall commence as of the date set forth on the Service Order Form and shall continue thereafter up to and through the last day of the Service Period, unless terminated sooner pursuant to the terms of this Agreement (the “Initial Term”). “Service Period” means the length of time set forth on the Service Order Form starting from the date of Equipment installation.
4.1.2. At the end of the Initial Term, the Service Period shall automatically renew on a month to month basis (each, a “Renewal Term” and all Renewal Terms together with the Initial Term, the “Term”), unless sooner terminated in accordance with the terms of this Agreement or either party provides the other party with written notice of nonrenewal at least 30 days prior to the end of the then current-term.
4.2.1. Either party may terminate this Agreement in the event the other party (a) materially breaches this Agreement and fails to cure such breach within thirty (30) days after the notifying party has given the breaching party written notice specifying such breach; or (b) makes an assignment for the benefit of creditors or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws.
4.2.2. Either party may terminate a Service Order Form by providing the other party with written notice at least thirty (30) days prior to the requested date of termination. Customer’s termination of a Service Order Form pursuant to this Section shall be subject to the early termination fee set forth in the Service Order Form.
5. Customer Responsibilities. In addition to Customer’s other responsibilities under this Agreement, Customer agrees that anyone using the Services will: (i) not resell the Services or Equipment to any third party without MarketSpark’s prior written approval; (ii) not use the Services for any illegal purposes and will comply with all federal, state, and local laws, rules, regulations and tariffs that apply to the Services, the Equipment, or this Agreement; (iii) be solely responsible to establish and maintain security measures (including, without limitation, codes, passwords, or other features) necessary to restrict access to Customer’s computers, servers, or other CPE through the Services; (iv) be solely responsible for all fraudulent, unauthorized, illegal, or improper use of the Services and/or Equipment by persons accessing those Services through Customer’s facilities, CPE, or Customer Location; and (v) authorize and identify to MarketSpark at least one individual who is authorized to represent Customer on any aspect of the Services and Customer’s account (including all requests for moves, additions, deletions or changes to the Services) (each, an “Authorized Individual”). Customer’s list of Authorized Individuals must be kept current at all times. A change requires the authorization of a currently Authorized Individual for Customer’s account. Updates and authorizations shall be sent to support@MarketSpark.com. Customer agrees to notify MarketSpark immediately of any loss of service or other problems with any of the Services. Customer further agrees to keep the Equipment at the Customer Location where it has been installed and to not make any alterations, additions, or replacements to the Equipment except as authorized in writing by MarketSpark. Customer authorizes MarketSpark to obtain billing information and customer service reports with respect to Customer’s telephone numbers, as well as Customer’s credit information.
6. 911 Terms and Conditions. The Services are provided subject to the terms and conditions as set forth at https://marketspark.com/911-terms/ as incorporated herein by reference and made part of this Agreement.
7. LIMITED WARRANTY. OTHER THAN THE WARRANTIES DEFINED IN THESE TERMS AGREEMENT AND THE SERVICE ORDER FORM, MARKETSPARK DISCLAIMS ALL OTHER EXPRESS WARRANTIES AND ALL WARRANTIES, DUTIES, AND OBLIGATIONS IMPLIED OR IMPOSED BY LAW, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON‐INFRINGEMENT, AND ANY WARRANTY FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AMONG OTHERS. CUSTOMER IS SOLELY RESPONSIBLE TO SELECT, USE, AND DETERMINE THE SUITABILITY OF MARKETSPARK SERVICES AND THE EQUIPMENT, AND MARKETSPARK WILL HAVE NO LIABILITY FOR THAT SELECTION, USE, OR SUITABILITY. MARKETSPARK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR‐FREE OR THE FITNESS OF THE SERVICES FOR A PARTICULAR PURPOSE. MARKETSPARK DOES NOT REPRESENT THAT THE SERVICES OR THE EQUIPMENT WILL MEET CUSTOMER’S REQUIREMENTS OR PREVENT UNAUTHORIZED ACCESS TO CUSTOMER’S COMPUTERS, NETWORK, SERVERS AND OTHER EQUIPMENT OR TO ANY DATA, INFORMATION, OR FILES ON ANY OF THEM. WHENEVER CUSTOMER IS ENTITLED TO MARKETSPARK’S INTEREST IN ANY EQUIPMENT, MARKETSPARK WILL ASSIGN SUCH EQUIPMENT “AS-IS, WHERE-IS,” EXCEPT THAT MARKETSPARK WILL WARRANT THE ABSENCE OF ANY ENCUMBRANCES BY, THROUGH, OR UNDER MARKETSPARK AND, ON REQUEST, PROVIDE CUSTOMER WITH A STANDARD BILL OF SALE TO THE FOREGOING.
8. MarketSpark Intellectual Property. The parties acknowledge and agree that in order for MarketSpark to perform one or more of its obligations in connection with specific Software (or any specific parts thereof), MarketSpark may, in some instances, need to utilize certain of MarketSpark’s own proprietary pre-existing code, technology, or software (“MarketSpark IP”). Such MarketSpark IP shall not be deemed included in the Services provided hereunder, and all rights in and to such MarketSpark IP are and shall remain the sole and exclusive property of MarketSpark.
9.1. MarketSpark Indemnification. MarketSpark shall release, indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) incurred by Customer resulting from any third-party claim, suit, action, or proceeding that (i) the MarketSpark IP, Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, or (ii) results from MarketSpark’s gross negligence or willful misconduct; provided that in each instance, Customer promptly notifies MarketSpark in writing of such claim, cooperates with MarketSpark, and allows MarketSpark sole authority to control the defense and settlement of such claim.
9.2. Customer Indemnification. Customer shall release, indemnify, defend, and hold harmless MarketSpark, its affiliates, directors, officers, shareholders, employees, and agents from and against all Claims to the fullest extent permitted by applicable law. “Claims” means claims, judgments, damages, liabilities, settlement payments, losses, costs, expenses, Taxes, and recoveries for any amounts claimed due, including penalties, interest, and reasonable attorneys’ fees and disbursements, under actions (including those based on strict liability, statute, regulation, common law, or other legal theory) relating to (i) the operation, selection, manufacture, purchase, ownership, leasing, possession, maintenance, delivery, return, servicing or sale of the Equipment imposed during or fairly relating to any period preceding the expiration of the Term and the return or purchase of all Equipment; (ii) Customer’s failure or refusal to perform Customer’s duties and responsibilities under this Agreement; (iii) Customer’s failure or refusal to comply with any federal, state, or local law; (iv) any inaccuracy in or breach of any of Customer representations or warranties contained in this Agreement; (v) Customer’s use of any Services hereunder that is not in accordance with any applicable restrictions, limitations, or obligations that MarketSpark has communicated in writing to Customer; or (vi) any unauthorized use by Customer of MarketSpark IP or Confidential Information.
10. LIMITATIONS OF LIABILITY.
10.1. EXCEPT WITH RESPECT TO A PARTY’S OBLIGATIONS OF INDEMNIFICATION PURSUANT TO SECTION 9, A BREACH OF THE OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 12, OR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, IN NO EVENT WHATSOEVER SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY CAUSES OF ACTION FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR OTHER SIMILAR TYPE OF DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES BASED UPON LOSS OF DATA, LOSS OF PROFITS, AND/OR LOSS OF BUSINESS, OR LOSS, DAMAGE, OR DESTRUCTION OF ANY PROPERTY, WHETHER CUSTOMER, CUSTOMER’S PERMITTED ASSIGNEE, OR ANY OTHER TRANSFEREE SUFFER THAT LOSS OR DAMAGE, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, WHETHER UNDER CONTRACT, TORT OR ANY OTHER CAUSE OF ACTION AND WHETHER OR NOT SUCH PARTY IS INFORMED, KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, UNLESS SUCH DAMAGES ARE DUE TO THE WILLFUL MISCONDUCT OF MARKETSPARK. EXCEPT WITH RESPECT TO MARKETSPARK’S OBLIGATIONS OF INDEMNIFICATION PURSUANT TO SECTION 1, IN NO EVENT SHALL MARKETSPARK BE LIABLE TO CUSTOMER FOR ANY AMOUNTS IN EXCESS OF AMOUNTS ACTUALLY PAID BY CUSTOMER TO MARKETSPARK PURSUANT TO THIS AGREEMENT. MARKETSPARK IS NOT LIABLE FOR THE CONTENT, ACCURACY, OR QUALITY OF INFORMATION TRANSMITTED THROUGH ITS EQUIPMENT, FACILITIES, OR SERVICES, OR THROUGH THE EQUIPMENT, AND CUSTOMER AGREES TO ASSUME ALL RISK OF TRANSMITTING, RECEIVING, OR USING ANY SUCH CONTENT OR INFORMATION. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION REPRESENT A FUNDAMENTAL TERM OF THIS AGREEMENT AND NEITHER PARTY WOULD HAVE ENTERED INTO THIS AGREEMENT WITHOUT THEIR INCLUSION.
10.2. MarketSpark does not control how emergency 911 calls are answered or handled by any local emergency response center. MarketSpark disclaims all liability and responsibility for the actions and conduct of any and all national and local emergency response centers. MarketSpark relies entirely upon third parties to route emergency 911 calls to local and national emergency response centers. MarketSpark disclaims any and all liability and responsibility resulting from the absence, failure or outage of the emergency 911 services, including without limitation the emergency dialing service or access to emergency service personnel, or in the event such third party data used to route the calls is incorrect or produces an erroneous result. Neither MarketSpark nor its officers, directors, members, shareholders, or employees may be held liable for any claim, damage or loss, and Customer hereby waives any and all such claims or causes of action arising from or related to, emergency 911 Services unless such claims arose from MarketSpark’s gross negligence, recklessness or willful misconduct. Customer, on its own behalf and on behalf of any third party, hereby agrees to defend, indemnify and hold harmless MarketSpark, its officers, directors, members, shareholders, employees and agents from and against any and all claims, losses, damages, fines, penalties, costs and expenses (including attorneys’ fees) relating to the absence, failure or outage of the emergency 911 services, including without limitation the emergency dialing service or access to emergency service personnel. MarketSpark is not liable for errors or omissions in any information about Customer in any published directory. Customer agrees to be solely responsible for ensuring the accuracy of any information about Customer in any published directory.
10.3. Notwithstanding any principle, rule, or law to the contrary, no action, proceeding, or arbitration of any kind whatsoever, whether sounding in tort, contract, restitution, equity, or otherwise, shall be brought by Customer against MarketSpark, or its directors, officers, shareholders, agents, or employees, more than one (1) year from the date Customer discovers, or through the exercise of reasonable diligence should have discovered, any cause of action, claim, controversy, or dispute arising out of, under, or in connection with the subject of this Agreement.
11. Force Majeure. MarketSpark will not be in violation of this Agreement or otherwise liable for any delay, failure to perform, or equipment or property damage, loss, destruction or malfunction, or any consequence thereof, caused by anything beyond MarketSpark’s reasonable control, including, without limitation, fire, earthquake, flood, weather, acts of God, labor disputes, utility curtailments, power failures, cable cuts, failure caused by telecommunications or other Internet provider(s), Equipment, worms, Trojan horses, viruses or other destructive code or software, explosions, civil disturbances, pandemics, terrorism, vandalism, governmental actions, or shortages of equipment or supplies (collectively, “Events of Force Majeure”).
12. Confidentiality. “Confidential Information” shall include, without limitation, knowledge about business formulas, products, processes, techniques, technology, research, services, trade secrets, inventions, copyrights, patents, patent applications, contracts, marketing materials and strategies, customer lists, customer prospect lists, software programs, financial information, and all concepts, plans, proposals, or information about MarketSpark’s current, future, and proposed business or any of MarketSpark’s customers, whether or not such information would be enforceable as a trade secret. Confidential Information also includes proprietary or confidential information of any third party who may disclose information to MarketSpark in its course of business. Customer will not, without prior written consent from MarketSpark, disclose to any individual or entity any such Confidential Information, and will use such information only as may be reasonably necessary as it pertains to this Agreement. Confidential Information disclosed under this Agreement shall be treated with the same degree of care (provided that such is at least a reasonable degree of care) to avoid disclosure to third parties as Customer would normally use to protect its own confidential or proprietary information. MarketSpark may seek equitable relief (and any other remedies) to enforce this Section 12. For Confidential Information that is a “trade secret” (as defined by applicable law), Customer’s obligations under this Section 12 will continue for the longer of: (i) three (3) years after termination of this Agreement; or (ii) until such information is no longer a trade secret under applicable law. For all other Confidential Information, Customer’s obligations under this Section 12 will continue during the Term and for three (3) years after termination of this Agreement.
13. Maintenance. MarketSpark may perform maintenance that may affect the availability or functionality of all or part of the Services at any time. Any impact on the Services as a result of maintenance will not be deemed a breach of this Agreement and will not entitle Customer to any credit, refund, or right to terminate this Agreement or any affected Service.
14. Default. It is an “Event of Default” if: (a) Customer fails to pay any payment under this Agreement or other amount when due; (b) Customer fails to comply with this Agreement or any related document or other agreement with MarketSpark; (c) a representation or warranty or statement made by Customer in this Agreement or in any other instrument provided by Customer is incorrect in any material respect when made; (d) without the prior written consent of MarketSpark, Customer either relocates the Equipment or purports to assign or sublet any interest in the Equipment; (e) except as permitted under Section 2, Customer undergoes a change in control; (f) the Equipment is levied against, seized, or attached; (f) there is, with respect to Customer, an appointment, election, nomination, or other institution of any administrator, examiner, administrative receiver, compulsory manager, trustee, or liquidator of Customer, or Customer makes or seeks an assignment for the benefit of creditors or any arrangement or composition with its creditors, or is or becomes insolvent, dissolves, or assigns its assets for the benefit of its creditors, or commits any act of bankruptcy, or is the subject of a petition or proceeding under any bankruptcy, reorganization, arrangement of debts, insolvency, or receivership law, or Customer seeks to effectuate a bulk sale of its inventory, equipment, or assets, or takes any action with a view to termination of Customer or of its business, and, if any of the foregoing events is not voluntary, it continues for at least 60 days; or (g) a default or event of default occurs under any other agreement entered into between MarketSpark and Customer.
15. Remedies. If an Event of Default occurs and is continuing, whether or not MarketSpark has notified Customer of the occurrence of the Event of Default, subject to any applicable cure periods, MarketSpark may in its absolute discretion exercise any one or more of these remedies: (a) terminate the Agreement and all of Customer’s rights with respect to the Equipment; (b) take possession of, or render unusable, any Equipment wherever located, without/ notice to Customer, court order or other process of law (but without breaching the peace and subject to any applicable law), and without liability for damages occasioned by such action (except for direct damages to the extent caused by MarketSpark’s negligence or willful misconduct), and no such action will constitute a termination of the Agreement, all as though Customer had failed to surrender the Equipment when required to do so; (c) if applicable, require Customer to return the Equipment to a location designated by MarketSpark and surrender control of the Equipment to MarketSpark as though the Term had expired (and such actions will not constitute a termination of the Agreement); (d) proceed by court action to enforce performance by Customer of the Agreement and/or to recover all damages and expenses suffered by MarketSpark as a consequence of any Event of Default; or (e) exercise any other right or remedy available at law or in equity. Customer will also reimburse MarketSpark for all expenses (including legal fees and disbursements and costs and fees of collection agencies) MarketSpark incurs in enforcing its rights with respect to the Equipment, whether under this Agreement or otherwise. MarketSpark’s sole obligation to mitigate its damages is that if it repossesses any Equipment pursuant to this Section MarketSpark will lease, sell, or otherwise dispose of the Equipment in a commercially reasonable manner, with or without notice, and at public or private sale, and apply the net proceeds (after deducting all expenses of disposition), if any, to the amounts owed to MarketSpark, but Customer will remain liable to MarketSpark for any deficiency that remains after any such disposition. With respect to any notice of sale required by law, ten days’ notice is reasonable notice. The remedies provided in this Agreement are in addition to all other rights or remedies now or hereafter existing under this Agreement, or at law or in equity, and may be enforced concurrently therewith, and from time to time. If Customer fails to make any payment to a third party or to perform any other act required hereunder, MarketSpark may, but need not, make such payment or perform such act at the expense of Customer, reimbursable to MarketSpark on demand, and MarketSpark’s action shall not be deemed a cure or waiver of Customer’s failure.
16. Mutual Representations and Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound; and (d) it is neither a provider of ‘voice service’ as defined by 47 CFR § 64.6300(l) nor a ‘foreign voice service provider,’ as defined by 47 CFR § 64.6300(c).
17.1. Modification; Entire Agreement. This Agreement may only be amended by a written document that is signed by Customer and MarketSpark. Handwritten alterations or additions to this Agreement will not be considered binding. This Agreement, including all Service Order Forms, exhibits, schedules, attachments, and riders, all of which are hereby incorporated into and made a part of this Agreement, contains all of the terms and conditions made between the parties with respect to the Services and Equipment and supersedes all prior agreements, understandings or arrangements, both written and oral.
17.2. Assignment. Neither party may assign this Agreement without the prior written consent of the other party, not to be unreasonably conditioned, withheld or delayed, except that: (i) MarketSpark may assign all or any of its rights and/or obligations hereunder (a) to its parent, affiliates or subsidiaries, (b) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets, or (c), with respect to the Equipment Fees and related rights to the Equipment only, for purposes of financing or servicing; and (ii) Customer may assign Customer’s rights and/or obligations hereunder (a) to Customer’s parent, affiliates or subsidiaries, or (b) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all Customer assets, provided that (1) Customer has fully paid all Charges through the date of assignment; (2) the proposed assignee agrees in writing to be bound by all provisions of this Agreement; and (3) Customer remains obligated to perform under the Agreement.
17.3. Independent Contractor. MarketSpark’s relationship with Customer is that of an independent contractor. Nothing in this Agreement shall be deemed to alter that relationship, nor shall this Agreement be construed to create a joint partnership, joint venture, agency, or employer-employee relationship.
17.4. Time is of the Essence. The parties intend not to violate any applicable usury laws or to exceed the maximum amount of time price differential or interest, as applicable, permitted to be charged or collected by applicable law, and any such excess payments that would otherwise be charged or collected will instead be applied to Fees or other amounts owed under this Agreement or returned to Customer.
17.5. Waivers. Any party to this Agreement will be considered to have given up or waived its right to require strict performance and compliance of any provision of this Agreement by the other party only when it has signed a written agreement or acknowledgement waiving that strict performance and compliance of such provision in any instance. Any written waiver in any one instance will not apply to any other or later non‐performance or non‐compliance by the other party of such provision or any other provision.
17.6. Governing Law. In any action for injunctive relief or to collect any debt, each party consents to the exclusive jurisdiction of the state and federal courts having jurisdiction in San Diego, CA. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without regard to conflict of laws principles, and is subject to any federal, state, or local tariffs that may apply. If any conflict should arise between the terms of this Agreement and an applicable tariff or addendum, Customer agrees that the terms of the applicable tariff or addendum shall control. To the extent permitted by applicable law, each party expressly waives trial by jury.
17.7. Change in Laws. Customer acknowledges that future rules, tariffs, regulations, orders, treaties or other laws promulgated, enacted, or entered into by international, federal, state or local legislatures, agencies, governments or other regulatory bodies may affect Customer’s or MarketSpark’s respective rights or obligations under this Agreement. If any such future action adversely affects MarketSpark’s rights or obligations under this Agreement, then the parties shall renegotiate this Agreement in good faith to address the effect of such actions. If the parties are unable to reach an agreement, this Agreement shall be terminated without further penalties or fees to Customer.
17.8. Severability. If any court should declare any one provision of this Agreement to be invalid, then the other provisions will remain in effect and the parties will work in good faith to agree to a replacement provision that has the same or similar intent as the original provision. This Agreement is for the sole benefit of Customer and MarketSpark (and its assigns), and no other person.
17.9. Survivability. The provisions of Sections 6-10, 12, and 15-17 of these Terms, and the Service Order Form, as well as any other terms of this Agreement that expressly extend or by their nature should extend beyond termination or expiration of this Agreement, shall survive and continue in full force and effect after any termination or expiration of this Agreement for any reason.
17.10. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed to have been duly given when delivered in person, mailed by certified mail, return receipt requested or recognized overnight delivery service to the addresses listed below or to such other address as either party shall designate by giving written notice of such change to the other party. A courtesy copy may also be transmitted via email but only if accompanied by notice as set forth above.
If to the Company:
750 B St. Suite 1630
San Diego, CA 92101
Attention: Patrick Burns
with a copy (which shall not constitute notice) to:
K&L Gates LLP
Southeast Financial Center – 39th Floor
200 South Biscayne Blvd.
Miami, FL 33131
Attention: Clayton E. Parker, Esq.
If to the Customer:
To the address set forth in the Service Order Form.
17.11. Headings. The section headings used herein are for reference only and will not impact the interpretation of this Agreement.