1 TERMS AND CONDITIONS OF SERVICE A. APPLICATION 1. The following Terms and Conditions of Service ( Terms and Conditions ) constitute the agreement ( Agreement ) between SIP*Link LLC ( SIP*Link ), a Delaware company with offices located at Sunset Hills Road, Suite 100, Reston, Virginia, 20190, its affiliate, Global Tel*Link Corporation ( GTL, and collectively with SIP*Link, Providers, we, our or us ), a Delaware company with a principal place of business at 2609 Cameron Street, Mobile, Alabama, 36607, and the customer ( Customer, you or your ) for Services (as defined below). Providers and Customer each represent and warrant that they have the power and authority to enter into this Agreement. 2. This Agreement becomes a binding contract following your acceptance of the terms and conditions applicable to the ordered Services. You are deemed to have accepted the terms of the Agreement applicable to your Services upon your use of the Services following notification to you of the availability of the Terms and Conditions either at the SIP*Link Website or upon request by telephone or by mail. B. DEFINITIONS 1. Types of Services Defined. Traffic Routing allows certain voice traffic delivered to SIP*Link from Customer s equipment to be routed by SIP*Link using least cost routing to one of a variety of transmission options available to Customer through use of Transmission Service provided by GTL. SIP*Link provides no transmission services in connection with the provision of Traffic Routing. The resold Transmission Service provided by GTL hereunder allows Customer to transmit and terminate voice traffic delivered to SIP*Link from Customer s equipment to the public switched telephone network through a variety of underlying telecommunications service providers. 2. Services. Services means Traffic Routing Service and Transmission Service purchased by Customer as a bundled offering, and used to route and complete Customer s long distance voice calls. 3. Enhanced Service. Enhanced Service means a service, offered over common carrier transmission facilities used in interstate communications, that employs computer processing applications that act on the format, content, code, protocol or similar aspects of the subscriber's transmitted information; provides the subscriber additional, different, or restructured information; or involves subscriber interaction with stored information. 4. Information Service. Information Service means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.
2 5. Service Order. Service Order means the written request for Services executed by the Customer and the Providers in the format devised by the Providers. The signing of a Service Order by the Customer and acceptance by the Providers initiates the respective obligations of the parties as set forth therein and pursuant to these Terms and Conditions. 6. VoIP Service. VoIP Service means a service that: (1) requires a broadband connection from the user s location; (2) requires Internet protocol-compatible customer premises equipment; and (3) includes a suite of integrated capabilities and features, able to be invoked sequentially or simultaneously, that allows customer to manage personal communications dynamically, including enabling them to originate and receive voice communications and access other features and capabilities. C. SERVICES 1. Availability of Services. The Services are subject to availability. 2. Purpose of Services. The Services are provided to you to terminate traffic that originates at your end user. 3. Nature of Services. You acknowledge that SIP*Link is not authorized to transmit traffic. SIP*Link s provision of Traffic Routing does not constitute the provision of common carrier telecommunications services by SIP*Link. 4. Provision of Services. We will provide the Services to you for calls originated as Information Service, Enhanced Service, or VoIP Service. All of the traffic you seek to route and terminate using the Services hereunder shall originate in the form of an Information Service, Enhanced Service, or VoIP Service as defined herein. You will hand off traffic to SIP*Link via Session Initiated Protocol ( SIP ) format, over the public Internet. SIP*Link, in its sole discretion, will determine how your traffic shall be handed off to one of GTL s service providers for carriage to the called party. 5. Customer Responsibilities. You are responsible for the provision of any equipment or facilities necessary for you to access or use the Services. You are responsible for payment of all costs relating to equipment and/or facilities obtained by either SIP*Link or GTL on your behalf. You agree to provide a valid, unmanipulated originating Automatic Number Identification ( ANI ), charge party number, or calling party number Services. You acknowledge that you will not rely upon the Services for 911, E911, or other emergency services ( 911 services ). You represent and warrant that you assume all liability for any and all 911 Services associated directly or indirectly with your provision of services to your end user customers and all others who may avail themselves of your services D. BILLING AND PAYMENT
3 1. Billing Format. You will be billed through the use of a single invoice under the SIP*Link brand. 2. Payment. You shall be responsible for payment for the Services beginning on the date service is first provided or such earlier date as agreed to by the parties to this Agreement. Unless properly disputed in accordance with Section E herein, all amounts owned by you hereunder shall be paid within the time frame specified by the specific pricing plan applicable to you under this Agreement as identified in the Service Order. 3. Payphone-Originated Traffic. With respect to any traffic originated from payphone in the United States that you route to us, you represent and warrant to us that you shall comply with your obligations as a Completing Carrier under United States law, including without limitation relating to compensating payphone service providers, irrespective of whether any applicable governmental authority determines that Providers or another third party is legally responsible for such compensation. 4. Liability upon Termination. Any termination, suspension, or discontinuance undertaken pursuant to Section F herein shall not relieve you of your obligation to pay any charges incurred hereunder prior to such event. 5. Collection. If at any time, for any reason, you are unable to pay invoices when due, and in the event it becomes necessary for us to incur collection costs or institute suit to collect any amount due under this Agreement or any portion thereof, you shall pay any such additional costs, charges, and expenses including reasonable attorneys fees. E. BILLING DISPUTES 1. Notice. If you dispute any invoice, you must provide written notice of the dispute (including the details thereof) and accompanying documentation to support your claim within sixty (60) days of the invoice date. 2. Liability for Payment. Disputing an invoice does not relieve you from your obligation to remit the undisputed portion of invoices on or prior to the applicable payment date. 3. Investigation. We will work with you in good faith to investigate and resolve a dispute, for which we receive timely notification pursuant to the requirements of this Section. 4. Failure to Resolve. If a dispute cannot be resolved within thirty (30) days after commencement of negotiations, any party may exercise their rights to seek all appropriate legal and equitable relief. F. TERM, DISCONTINUANCE, AND TERMINATION OF SERVICES 1. Discontinuance of Services. We may, in our reasonable discretion, suspend, discontinue, or temporarily block your ability to use the Services if we deem such action necessary,
4 either to protect against improper use or to protect against fraud or the commission of suspected illegal activities, or to otherwise protect our personnel, agents, facilities, or services. 2. Termination. We may, at our sole option, terminate this Agreement or suspend or discontinue the Services at any time upon: (1) any failure by you to pay any undisputed amounts when due and payable under this Agreement as set forth in the Service Order; (2) any breach by you of any provision of this Agreement, except as covered by clause (1) above, continuing for thirty (30) days after receiving written notice thereof; (3) any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver, or any similar event with respect to you; or (4) any governmental prohibition or required alteration of the Services to be provided hereunder or any violation of an applicable law, rule, or regulation. We may, at our sole option, terminate this Agreement or suspend or discontinue the Services at any time if: (1) you exceed the usage or credit limits set by us without our prior written consent; (2) your traffic poses a threat to our network; or (3) with 30 days advance notice, for our convenience. G. USE OF SERVICES 1. Compliance with Laws. Each party shall comply with all applicable laws, rules and regulations concerning the provision and use of Traffic Routing and Transmission Service provided hereunder. Failure to do so shall constitute a material breach of this Agreement. 2. Customer Responsibilities. You represent and warrant that you have obtained, and will maintain throughout the Term, all certifications and other authorizations necessary for use of the Services and for providing services to your end users. 3. Lawful Use of Services. You shall use the Services in a manner consistent with applicable law and shall not use the Services, or permit the Services to be used, for any illegal purpose or in any unlawful manner. Any transmission of material in violation of any federal, state or local law, order or regulation is prohibited, and shall constitute grounds for termination of this Agreement by Providers in their sole discretion. H. CONFIDENTIALITY 1. Confidential Information. Confidential Information means all information relating to any party or its affiliates that, upon disclosure, is identified by the disclosing party as confidential, except for information which: (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving party or its representatives, (ii) was available to the receiving party or its representatives on a non-confidential basis prior to the effective date of this Agreement, (iii) is independently developed by the receiving party or its employees, attorneys, accountants, or financial institutions (collectively, Representatives ) without the use of Confidential Information provided by another party, or (iv) becomes available to the receiving party or its Representatives on a
5 non-confidential basis from a source other than another party, provided that such source is not bound by a confidentiality agreement with, or obligation to, such other party. 2. Non-Disclosure Of Confidential Information. Each party agrees not to disclose Confidential Information of any other party during the Term and for a period of two years thereafter, except to their Representatives on a strict need-to-know basis, and only after advising them of the contents of this provision. Except as provided above or as may be otherwise required by law, each party shall notify any other party prior to the release of any Confidential Information. Nothing herein shall preclude a party from disclosing any information to the extent required to be disclosed by a court or government agency of competent jurisdiction, provided such party provides notice and an opportunity to obtain confidentiality protection, if available, prior to disclosure. Notwithstanding anything herein to the contrary, the confidentiality provisions shall survive the breach or termination of this Agreement.. I. CHANGE OF LAW 1. This Agreement is subject to all present and future valid orders and regulations of any governmental or regulatory body having jurisdiction over the subject matter hereof and to the laws of the United States of America, any of its states, or any foreign governmental agency having jurisdiction over the parties hereto. In the event this Agreement shall be found contrary to or in conflict with any such order, rule, regulation, or law, the parties agreement to modify and amend the Agreement to the extent necessary to comply with any such order, rule, regulation, or law consistent with the form, intent, and purpose hereof. 2. In the event the Federal Communications Commission ( FCC ), Congress, a state legislature or regulatory body (such as a utilities commission) or a court of competent jurisdiction issues a rule, regulation, law or order that has the effect of increasing the cost to provide the Services hereunder or canceling, changing or superseding any material term or provision of this Agreement (each a Regulatory Requirement ), then the parties shall modify this Agreement in such a way as the parties mutually agree is consistent with the form, intent, and purpose of this Agreement and is necessary to comply with the Regulatory Requirement. In the event the parties fail to reach agreement on an amendment to reflect the Regulatory Requirement within sixty (60) days after the effective date of such Regulatory Requirement, then upon thirty (30) days written notice any party may, to the extent practicable, terminate that portion of this Agreement impacted by the Regulatory Requirement, or the entire Agreement. J. MISCELLANEOUS TERMS 1. Governing Law. This Agreement will be governed by the laws of the Commonwealth of Virginia, without regard to conflicts of law principles. You consent to the exclusive jurisdiction of the federal and state courts located in the Commonwealth of Virginia, with respect to all legal actions regarding this Agreement.
6 2. Formal Notifications. All formal notifications under this Agreement shall be in writing, and delivered to the address in the customer Agreement. Any party may change the notice address or addressee by providing prior written notice as required by this Section. Any notices or communications required or desired to be given in connection with this Agreement shall be in writing and shall be delivered to the applicable party by hand or by U.S. certified mail, return receipt requested, or by a nationally reputable overnight courier service addressed to the parties as noted above. Information transmitted via electronic mail shall not constitute effective notice under this Agreement. All notices shall be deemed received upon delivery. 3. No Waiver of Rights. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of the right or provision. Providers reserve all of their rights at law and equity to proceed against anyone who uses its Services illegally or improperly. All determinations by Providers under this Agreement and exercise of their rights are made and done in their sole and absolute discretion. 4. Assignment. You may not assign this Agreement without our prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, any party may assign their rights and obligations hereunder, (a) to any present or future subsidiary, parent, or affiliate; or (b) pursuant to any financing, merger, or reorganization. 5. No Third Party Rights. This Agreement shall not provide any third party with a remedy, claim or right of reimbursement. 6. Intellectual Property. All rights to Providers intellectual property, including but not limited to copyrights, patents, software, trademarks, and service marks, shall remain the sole property of Providers. You shall not contest or otherwise interfere with our rights. 7. Force Majeure. No party shall be liable for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by extraordinary events beyond such party s reasonable control, including, but not limited to, fire, flood, water, the elements, labor disputes, act of terrorism, accident, war, strike, embargo, governmental requirement, civil or military authority, explosions, civil disturbances or acts of God, which make it impossible or impractical for the parties to fulfill the obligations contemplated by this Agreement. Nothing herein shall relieve you from making payments owed for services rendered. 8. Relationship of The Parties. No joint venture, partnership or agency of any kind shall be deemed created by this Agreement. Each party is an independent contractor and shall not have, nor hold themselves out as having, the power or authority to bind or create liability on behalf of any other party. You are the sole customer of record under this Agreement, and we shall have no responsibility with regard to any end user of your service. 9. Entire Agreement. This Agreement and any Service Order, attachments, or other documents referred to herein and incorporated into this Agreement by reference (if any)
7 constitutes the entire agreement of the parties with respect to the subject matter hereof, and takes the place of all prior agreements, negotiations, and representations, whether written or oral, concerning the Services. Providers may revise this Agreement. If you do not agree to the revision(s), you must terminate your Services immediately, subject to the termination provisions described herein. By continuing to use the Services after revisions are in effect, you are accepting and agreeing to all revisions. 10. Severability. If we do not enforce any right or remedy available under this Agreement, that failure is not a waiver. Except where this Agreement specifically provides otherwise, if any part of this Agreement is held invalid or unenforceable, the remainder of Agreement will remain in force. K. DISCLAIMERS OF WARRANTY Providers provide the Services in accordance with this agreement and generally applicable industry standards. NOTWTHSTANDING ANY PROVISION TO THE CONTRARY IN THIS AGREEMENT, PROVIDERS PROVIDE THE SERVICES AS IS AND AS AVAILABLE AND MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. L. LIMITATION OF LIABILITY PROVIDERS ENTIRE LIABILITY FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE FROM ANY CAUSE WHATSOEVER, SHALL IN NO EVENT EXCEED THE SUMS PAID BY CUSTOMER TO PROVIDERS FOR THE SERVICES GIVING RISE TO THE CLAIM. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMTIED TO BUSINESS LOSSES OR LOST PROFITS) AS A RESULT OF ANY OF THE SERVICES, EQUIPMENT, FACILITIES, PERSON, OR SYSTEM PROVIDED OR UTILIZED UNDER THIS AGREEMENT. M. INDEMNIFICATION 1. Each party to this Agreement shall defend and indemnify all other parties and their affiliates, directors, officers, employees, representatives, agents and shareholders from any and all claims, forfeitures, fines, penalties, expenses, damages, interest, lawsuits or other liabilities (including without limitation, reasonable attorney fees and court costs) relating to or arising out of (i) a party s negligent acts or omissions in the operation of its business, and (ii) a party s breach of this Agreement; provided, however, that we shall not be liable and shall not be obligated to indemnify you, and you shall defend and indemnify us hereunder, for any claims by any third party, including your end users, with respect to services provided by you which may rely on or incorporate the Services provided hereunder.
8 2. Each party to this Agreement agrees to defend, indemnify, and hold all other parties and their officers, directors, agents, affiliates, distributors, franchisees, and employees harmless from and against any and all customer end user or third-party claims, losses, damages, actions, liabilities, expenses or costs, including reasonable attorneys fees, arising out of or in connection with any claim, demand, action, suit, investigation, arbitration, or other proceeding by Customer s end user or third-party to the extent directly or indirectly arising from use of the Services provided under these terms and conditions. 3. You shall indemnify, hold harmless and reimburse Providers and their affiliates for any reasonable sums, costs, charges, fees (including but not limited to reasonable attorneys fees and court costs), expenses, penalties and interest incurred by Providers or due or claimed by any third-party, including but not limited to the carriers responsible for termination of your traffic, in connection with your traffic. Specifically, in the event that a third-party carrier assesses charges on Providers or their affiliates in connection with your traffic, you agree to indemnify and hold Providers and their affiliates harmless from all costs, including any reasonable attorney s fees, associated with such charges. In the event a third-party carrier assesses charges on your traffic, you agree Providers are authorized to (a) disclose your name to the third-party carrier as the party responsible for this traffic, and (b) pass through directly to your all charges assessed on your traffic.