Terms and Conditions

 

These 123.Net, Inc. service Terms and Conditions (“Agreement”) set forth the terms and conditions upon which customer (“Customer”) agrees to purchase and use the Voice, Data Center (colocation), and/or Network services (“Service”) provided by 123.Net, Inc. (“123.Net”). This Agreement is incorporated and fully stated as part of Customer’s Service Order Form (“Service Order”).

 

Rates. Monthly Recurring Charges (“MRCs”), usage charges and Non-Recurring Charges (“NRCs”) are based on term plan rates and fees in effect at the time Service is ordered, as set forth on the Service Order, plus any applicable taxes and fees imposed by law.

 

Term and Expiration. The terms of this Agreement become effective upon execution. Customer’s Service term begins at the time Service is activated and shall continue for the duration stated in the Service Order (“Service Term”). Service activation occurs once the Service is available for use by the Customer. Upon expiration of the Service term, this Agreement will continue to automatically renew for a term equal to that stated in the Service Order (“Renewal Term”), unless properly terminated pursuant to the terms stated herein. This Agreement shall be binding and in full force and effect for all renewal terms.

 

Term Plan Change. Prior to the completion of the Service Term, Customer may renew the Service Term or change to a different Service Term without incurring early termination charges, provided the new Service: (i) is for an equal or greater number of circuits than the number ordered herein, (ii) the new Service MRC is higher, and (iii) Customer receives written approval from an authorized 123.Net representative authorizing the term plan change.

 

Installation and Move. Customer must have its phone/data vendor on site during the actual service conversion/porting. If the porting date is rescheduled by Customer or Customer’s vendor, a fee may apply. Customer is responsible for connecting 123.Net internet service to Customer’s data network. Router equipment provided by 123.Net is unmanaged and will remain the property of 123.Net. Customer must provide a grounded electrical outlet for installation of equipment. Integrated and analog circuits are loop start. By entering into this Agreement, Customer affirms that 123.Net is authorized by the property owner of the installation site to install the necessary devices to provide the Service to Customer and that Customer will cooperate with 123.Net to coordinate and gain whatever approvals and rights of access may be necessary to provide the Service to Customer. Unless otherwise agreed upon by Customer and 123.Net, 123.Net will not be responsible for demarcation extension or inside wiring charges. In the event that Customer moves its Service to a new location, Customer will not incur early termination charges provided termination of the old circuit and installation of the new circuit are ordered to occur concurrently, but NRCs may apply and Customer’s MRC may be adjusted based upon the new location. PLEASE NOTE that Customer must notify 123.Net of any change in its location, including a move within the same office building. If Customer fails to notify 123.Net of any such move, please be advised that 911 service and/or other emergency services available by VoIP may not function properly and Customer agrees that 123.Net is not responsible for any losses or damages resulting from Customer’s failure to notify 123.Net of its move.

 

Credit Approval, Billing & Payment. Customer authorizes 123.Net to conduct a credit check and Service installation is contingent upon Customer having a satisfactory credit history. Billing for services will begin as of the initial scheduled port/install date and billing accrues through and includes the day that the Service is discontinued. For colocation services, billing will occur as soon as electricity is installed and available for use in Customer’s cabinet. If service is disconnected by 123.Net in accordance with these policies and is later restored, restoration of service will be subject to all applicable restoration and installation charges. If Customer has an open balance that is owing past the due date, and which has not been disputed, 123.Net may apply late charges each month equal to 1.5% of the total outstanding amount “not including current activity.” If Customer has an open balance that has not been disputed which is past due for a period of 60 days or more, 123.Net may cancel Customer’s Service and continue to collect on the amount then owing. For colocation customers, if service is cancelled by 123.Net for non-payment, 123.Net may withhold all equipment located in Customer’s cabinet(s) until payment is made in full. This remedy shall be in addition to any remedy contained herein or implied by law and shall not constitute an election of remedies. 123.Net charges a fee of $5 per month for the delivery of paper invoices. For Paperless Billing, E-mail: ebilling@123.net and include Customer’s name and account number.Billing Disputes. If Customer disputes a term or amount on an invoice, Customer must do so in writing within 30 days from the invoice date. Disputes must be sent in writing to: E-mail: DisputeDepartment@123.net, Fax: 586-349-8005, Address: 24700 Northwestern Hwy. Ste. 700 Southfield, MI 48075. Disputes must be reasonable and made in good faith. Customer must pay the portion of its bill that is not in dispute. If Customer pays the amount of the invoice that is not in dispute this will not be deemed to constitute acceptance of the portion of the invoice that is in dispute. Partial payment on an invoice, even if said amount is accepted by 123.Net, does not constitute a waiver of any rights held by 123.Net to collect on the entire balance due and owing as stated.

 

Billing Disputes. If Customer disputes a term or amount on an invoice, Customer must do so in writing within 30 days from the invoice date. Disputes must be sent in writing to: E-mail: DisputeDepartment@123.net, Fax: 586-349-8005, Address: 24700 Northwestern Hwy. Ste. 700 Southfield, MI 48075. Disputes must be reasonable and made in good faith. Customer must pay the portion of its bill that is not in dispute. If Customer pays the amount of the invoice that is not in dispute this will not be deemed to constitute acceptance of the portion of the invoice that is in dispute. Partial payment on an invoice, even if said amount is accepted by 123.Net, does not constitute a waiver of any rights held by 123.Net to collect on the entire balance due and owing as stated.

 

Tariffs. In the event of conflict or discrepancy between provisions of this Agreement and provisions of the applicable tariff, the provisions of the tariff will prevail.

 

Fraudulent Call and Network Security. Customer shall manage without limitation the integrity of the traffic egressing customer’s network and is responsible for the security of the Customer’s phone system and local area network (LAN). Customer shall manage, and correct as necessary, any fraudulent calling patterns or calling patterns perceived as fraudulent that my harm or adversely affect 123.Net or its network, and Customers shall use best efforts to prevent and detect network looping. With services inclusive of long distance calling, all unauthorized domestic and International usage and subsequent charges incurred by the Customer as a result of hacking or intrusion into the Customer’s phone system or LAN are the sole responsibility and liability of Customer. In addition, Customer acknowledges that 123.Net is not responsible for the security of Customer’s owned network equipment and Customer further agrees to pay for all bandwidth consumption charges and expenses that are a result of fraudulent activity or a compromise of Customer’s network or equipment. Customer shall indemnify and hold 123.Net harmless from and against all claims, actions, losses, damages, costs, expenses, fines, penalties or other liabilities arising now and in the future resulting from fraudulent calls of any nature carried by means of the Services. Customer shall not be excused from paying 123.Net charges for the Services provided to the Customer, or any portion thereof, on the basis that fraudulent calls comprised a portion of the Services.

 

Acceptable Use Policy. 123.Net will impose an Acceptable Use Policy (the “AUP”) regarding Customer’s use of the Service. For all other terms and conditions relating to the Service, the AUP will control. Customer agrees to fully abide by the AUP and impose its policies on Customer’s end users to the extent necessary to ensure compliance. If there is a conflict between the Terms and Conditions and the AUP, the Terms and Conditions shall control. A copy of the AUP can be found at: https://www.123.net/acceptable-use-policies/

 

Provision of VoIP Service. Subject to the terms and conditions herein, 123.Net shall provide Customer with VoIP Service solely for Customer’s own use, and not for the benefit of any third party. Should Customer attempt to resell the VoIP Service, including the routing of Internet Protocol traffic from other individuals or organizations, 123.Net must be notified and may, at its sole discretion, increase the fees associated with the VoIP Service rendered hereunder and in Customer’s Order, or may terminate this Agreement. Customer agrees that the VoIP Services may not be used for purposes of: auto-dialing, telemarketing, call center activities, continuous use of extensive call forwarding, call relaying, fax broadcasting or fax blasting. 123.Net reserves the right to immediately terminate this Agreement, and or modify the VoIP Service or pricing, if 123.Net determines, in its sole discretion that Customer is using the VoIP Service for any of the aforementioned activities.

 

Disclaimer of Liability: Emergency Services and 911 and E-911 Calling. Customer acknowledges and agrees that 123.Net’s SIP, Dynamic PRI, and Hosted PBX service is internet based (VoIP) and that 911 services are different than that of traditional wireline services. For basic 911 or E911 to accurately route to the appropriate emergency responder, the Customer must provide the telephone number associated with the SIP and Dynamic PRI trunking service for the registered address. Customer agrees to ensure that the physical address of its Service is correct, and to immediately update such address whenever the physical location of the Service changes. Customer acknowledges that 123.Net VoIP service may not support basic 911 or E911 dialing in the same manner as traditional wireline phone service. Customer acknowledges and agrees to inform all employees, guests and other third party persons who may use the service that basic 911 and E911 services will not function in the case of a service failure for any of the following reasons: (A) Loss of power (B) Suspended or terminated broadband service and/or broadband connection failure (C) Suspension of service due to billing issues (D) Relocation of end user’s IP-compatible CPE (E) use by the end user of anon-native telephone number (F) Any other service outages or delays not described herein. Customer further acknowledges that failure to provide a correct physical address (registered location) in the requested format may cause all basic 911 or E911 calls to be routed to the incorrect local emergency service provider. Furthermore, customer recognizes that the use of the service from a location other that the location to which the service was ordered may result in basic 911 and E911 calls being routed to the incorrect local emergency service provider. Customer acknowledges and agrees that 123.Net, it’s officers, employees, underlying carriers, or any other third parties involved in the routing, handling, delivery, answering, or responding to emergency calls, may be held liable for any claim, damage, loss, fine, penalty or cost (including, without limitation, attorney fees) and customer hereby waives any and all such claims or causes of action, arising from or relating to the provision of all types of emergency services to Customer. Customer further agrees and acknowledges that it is indemnifying and holding harmless 123.Net from any claim or action for any caller placing such a call without regard to whether the caller is an employee of the Customer. Customer acknowledges and agrees to hold harmless and indemnify 123.Net from any claim or action arising out of misroutes of any 911 calls, or whether local emergency response centers or national emergency calling centers answer a 911 call or how the 911 calls are handled by any emergency operator including operators of the national call center. The limitations apply to all claims regardless of whether they are based on breach of contract, breach of warranty, product liability, tort and any other theories of liability. 123.Net shall provide Customer with warning labels regarding the limitations of unavailability of 911 emergency dialing. Customer agrees to place a label on or near each telephone or other Customer Equipment on which the Service may be utilized.

 

Loss of Service Due to Power Failure or Internet Service Outage. Customer acknowledges and understands that the VoIP Service does not function in the event of a power failure. Should there be an interruption in the power supply, the VoIP Service will not function until power is restored and may require Customer to reset or reconfigure the Customer Premise Equipment (“CPE”), IP Phones, or other equipment. Customer acknowledges and understands that the VoIP Service requires a fully functioning Internet connection and that in the event of an outage the VoIP Service will not function until the Internet connection is restored.

 

Internet Access: VoIP. In order to purchase the VoIP Service from 123.Net, Customer must purchase Internet Access from 123.Net. In addition, Customer understands and agrees that this Agreement for VoIP service modifies and supersedes any prior agreement of 123.Net to deliver Internet Access to Customer and amends that agreement to be coterminous and codependent with the term of this Agreement for VoIP Service. Customer understands and agrees that if Customer unplugs the equipment provided by 123.Net to enable VoIP Service and moves the equipment, to a different location where it is not utilizing 123.Net Internet Access, that 123.Net makes no representations or guarantees about the VoIP Service and Customer use the VoIP Service as its own risk.

 

123.Net Telecom Provided Equipment. In order to facilitate configuration of equipment and ensure its compatibility with 123.Net’s network, 123.Net requires that Customer exclusively use CPE and/or equipment supplied by 123.Net. CPE may include, but is not limited to; IP phones, Router, Network switch(s), or any other IP connection equipment provided to Customer. Such CPE may be included as part of a monthly subscription as defined by the Service Order(s) and carries a Monthly Recurring Revenue price, or 123.Net may rent CPE to Customer at 123.Net’s option. Customer shall bear the cost of any loss or damage to the CPE from any cause whatsoever. Customer acknowledges that Customer is solely responsible for maintaining physical, logistical and environmental security and control with respect to all CPE, and 123.Net shall have no liability whatsoever with respect to any breach of security caused by, related to, or arising out of Customer’s failure to maintain proper physical, logistical or environmental security. 123.Net provided CPE is, and at all times shall remain, the sole and exclusive property of 123.Net, and Customer shall have no right, title or interest therein. Customer shall not cause 123.Net CPE to become an improvement, attachment or fixture to real property. Customer, upon the termination or expiration of the Service Order(s) with 123.Net, shall return, at Customer’s sole cost, the CPE/ equipment in good repair and condition (normal wear and tear excepted) to 123.Net. If Customer fails to return CPE/equipment in good condition, as determined by 123.Net in its sole discretion, Customer shall be responsible for the Fair Market Value (FMV) of the damaged CPE/equipment. Within 60 days after termination or expiration of the Service Order(s), Customer shall coordinate a date and time with 123.Net to allow 123.Net to collect the CPE/equipment from the Customer premises. Customer shall not attempt to deliver, ship or mail, or otherwise seek to return any equipment to 123.Net without 123.Net’s prior authorization and approval. Customer shall bear all risk and liability if Customer fails to adhere to this section. 123.Net reserves the right to assess costs for any damage that occurs as a result of a breach of this paragraph, including failure to return any CPE/equipment as stated herein, and Customer agrees that these costs (the FMV) are liquidated damages which constitute compensation and not a penalty. Customer shall maintain adequate insurance on the CPE/equipment to insure against damage to or loss of the CPE/equipment. Customer agrees to use reasonable care in maintaining the CPE/equipment while in Customer’ possession. Customer is also responsible for a recovery fee of Seven-Hundred and Fifty Dollars ($750.00) for 123.Net to recover 123.Net’s CPE/equipment from Customer’s premises.

 

123.Net Provided VoIP Customer Equipment. For 123.Net VoIP IP Phones, 123.Net will warrant the equipment for the duration of the term agreement. Should any of the VoIP IP Phones require maintenance service, 123.Net will solely determine whether to replace the unit in whole or repair the malfunctioning unit(s). In the event 123.Net elects to repair damaged CPE, replacement parts provided will be either new parts or parts equivalent in performance to new parts. Parts removed from CPE for replacement will become the property of 123.Net. 123.Net does not warrant the replacement of any CPE/equipment that is damaged as a result of negligence. Customer shall be responsible for all costs associated with replacing CPE/equipment that is damaged as a result of Customer’s negligence.

 

VoIP CPE Service Program Exclusions. 123.Net repair and replacement obligations do not cover any of the following: (i) electrical work external to the 123.Net CPE; (ii) repair or replacement of damage to or defects in the CPE resulting from causes external to the CPE, including disaster, fire, accident, neglect, misuse, vandalism, water, power surges, or lightning; or resulting from use of the CPE for other than intended purposes; or use of the CPE with items not provided or approved by 123.Net; or resulting from the performance of maintenance or the attempted repair of an item of 123.Net CPE by persons other than 123.Net authorized personnel; (iii) furnishing supplies or accessories, or painting or refinishing the CPE; (iv) Services in connection with the relocation of the CPE, or the addition or removal of items of equipment or parts, attachments, features, from or to other devices not furnished by 123.Net, including communications devices, video devices, audio devices, networks or links; and (v) Services in connection with computer viruses or conflicts involving software that is not installed or introduced by 123.Net.

 

Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement or any Service Order, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments) when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including, without limitation: (1) acts of God; (2) flood, fire, earthquake, or explosion; (3) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (4) government order or law; (5) action by any governmental authority; (6) national or regional emergency; (7) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (8) shortage of adequate power or transportation facilities. The party suffering a Force Majeure event shall give prompt notice to the other party, stating the period of time the occurrence is expected to continue, and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure event are minimized.

 

Security Measures. Customer is solely responsible for establishing and maintaining adequate security measures including (but not limited to) maintaining passwords, codes, encryption, physical security measures or other methods necessary to restrict access to Customer’s computers, network, servers or other equipment used in conjunction with 123.Net VoIP services

 

Non-123.Net Network and CPE. Customer is solely responsible and assumes all liability for all network and CPE that was not installed by 123.Net (“non-123.Net CPE”). Customer further agrees that 123.Net is not responsible for controlling, monitoring, maintaining, or accessing non-123.Net CPE. 123.Net assumes no liability for non-123.Net Network and CPE, and Customer cannot recover SLA service credits stemming from service outages resulting from non-123.Net CPE.

 

Use of Equipment Outside of United States. 123.Net offers and supports Services only in the United States. The Services are designed to work generally with unencumbered high-speed internet connections. If the high-speed internet connection that Customer is using is not within a 123.Net service area, and/or the Customer ISP or broadband provider places restrictions on the usage of the Service, 123.Net does not represent or warrant that use of the Service is permitted by such other jurisdiction or by any ISP or broadband provider. Customer is solely responsible for any violations of local laws and regulations or violations of ISP and broadband provider terms of service resulting from such use.

 

SLA. 123.Net will provide the Service to you in accordance with its standard Service Level Agreement (the “SLA”). The parties agree to incorporate 123.Net’s SLA into this agreement. A copy of the SLA can be found at:

View 123.Net Service Level Agreement

 

Early Termination: Termination After Service Activation. In the event that Customer terminates the Service in whole or in part after Service activation but prior to the expiration of the term plan (except as otherwise permitted in this Agreement), Customer will be liable for an early termination charge calculated as: the MRC times the remaining months of the Service term times one-hundred (100%) percent. In addition, upon early termination, if installation or NRCs were waived, those charges may be charged back to Customer.

 

Early Termination: Termination Prior To Service Activation. In the event that Customer terminates the Service in whole or in part prior to Service activation (except as otherwise permitted in this Agreement), Customer will be liable for an early termination charge calculated as: All costs incurred by 123.Net in processing the Service, and all provisioning-related and/or installation-related costs incurred for the required equipment and facilities up to the date of termination (including but not limited to any termination/cancellation charges 123.Net may be required to pay third parties due to the Service termination).

 

Notice of Termination and Default. Written notice of Customer’s intent to terminate or not renew the Service must be received by 123.Net a minimum of 30 days prior to the expiration or renewal of Customer’s Service Term. Customer shall be liable for all charges incurred as a result of failing to provide timely notice of termination or non-renewal. Customer is responsible for all charges that accrue during the 30-day notice period. Customer further agrees to be liable for all legal fees and costs, including attorneys’ fees, incurred in the collection of any undisputed past due amounts or other damages stemming from the breach of this Agreement or Service Order(s).

 

Regulatory and Legal Changes. In the event of a change in applicable law, regulation, decision, service guide, tariff, rule, or order that materially increases the costs or other terms of delivery of Service, the parties agree to renegotiate the rates to be charged herein to reflect such increase in cost. If the parties are unable to reach an agreement about the new rates within thirty days of 123.Net’s written notice requesting renegotiation, then (a) 123.Net may pass such increased costs through to Customer, and (b) if 123.Net elects to pass such increased costs through to Customer, Customer may terminate the affected Service without termination penalty by delivering notice of termination no later than thirty days after the effective date of the rate increase.

 

Property Rights. 123.Net owns all rights, title and interest in 123.Net trade names, Service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of plans and of the hardware and software systems and resources necessary to provide the individual Service elements of which they consist. This Agreement does not constitute a license to Customer to use 123.Net’s trade names or Service marks.

 

Unlimited Calling Plans. Non-RBOC Surcharge. Unlimited calling plans are subject to various limitations as set forth below. 123.Net reserves the right to increase the monthly fee(s) for unlimited rate plans and/or immediately terminate service if 123.Net believes, in its sole discretion, that customer is doing the following: telemarketing, using auto-dialer equipment, fax blasting, operating a call center, internet dialing, using party lines, reselling the service, sharing the service with other parties or service addresses without the express written approval of 123.Net, or is otherwise abusing the service. 123.Net evaluates customer usage in comparison to other similarly situated customers. For example, over ninety-five per cent (95%) of 123.Net’s unlimited Michigan calling plan customers use less than twenty thousand (20,000) minutes per month and do not have any unusual calling patterns. Therefore customer agrees that 123.net may conclude that customer’s utilization of unlimited Michigan calling plan is abusive if it exceeds 20,000 minutes per month in combination with one or more of the following, including, but not limited to, excessive: (a) numbers of unique numbers called, (b) call lengths, (c) frequency of calls, (d) call forwarding/transferring, (e) conference calling, (f) short duration calls, (g) calls made during business hours, (h) numbers of calls terminated and re-initiated consecutively, which, in aggregate, result in excessive call lengths during a specific time frame, or (i) other abnormal calling patterns indicative of an attempt to evade enforcement of these terms or otherwise abuse the service. Customer acknowledges that if service is terminated under this provision, customer is subject to all applicable fees and taxes stated hereunder. Customer agrees to terminate at least eighty percent (80%), of Customer’s total domestic usage in a billing month to the local exchange areas serviced by a Regional Bell Operating Companies (“RBOC”). If Customer’s traffic in a billing month exceeds twenty percent (20%) terminating to a non-RBOC local exchange service area, 123.Net will apply a surcharge
of $0.030 per minute for the number of minutes that exceed twenty percent (20%).

 

Personal Property Taxes. Customer shall be solely responsible, where applicable, for paying local and state personal property taxes associated with Customer’s equipment stored in a colocation facility rented or owned by 123.Net. In the event that 123.Net is required by a governmental authority to pay property taxes on Customer’s behalf, 123.Net will have the right to be reimbursed by Customer for such amount. Customer must reimburse 123.Net within 30 days of written notice that a tax has been paid on Customer’s behalf by 123.Net.

 

For Intrastate Service. Except when Service is used solely as transport for 123.Net switched local or access service(s), Customer acknowledges that the interstate traffic (including Internet and international traffic) constitutes ten percent (10%) or less of the total traffic on any Ethernet, dedicated, or special access Service.

 

For Interstate Service. Customer acknowledges that more than ten percent (10%) of the traffic to be transmitted over the subject Service is and will be interstate in nature.

 

Partial Invalidity, Waiver.If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, the remaining provisions will remain in full force and effect. 123.Net agrees to renegotiate in good faith any term that is held to be invalid. One or more waivers of a breach of the terms and conditions of this Agreement shall not constitute a waiver of any future breach thereof.

 

Applicable Law. Venue and Jurisdiction. Dispute Resolution.This Agreement shall be subject to and governed by the laws of the State of Michigan. Any legal action arising out of this Agreement shall be exclusively initiated within the State of Michigan, Oakland County Circuit Court or the Federal District Court for the Eastern District of Michigan.

 

Entire Agreement. Modifications. Authority. This Agreement and any relevant Service Order(s) set forth the entire Agreement and understanding between the parties and merges all prior discussion between them. This Agreement may not be modified except by the written consent of both parties. By entering into this Agreement Customer affirms that Customer is a duly organized, legally existing entity or duly authorized individual with authority to enter into this Agreement.

 

Risk of Loss. At all times, Customer will bear the risk of any loss, damage or destruction, whether by fire, water damage, theft or other casualty for: (i) Customer’s assets, equipment or property, (ii) property of 123.Net which is located on Customer’s property (whether leased or owned) or within Customer’s care, custody or control, or (ii) Customer’s property that is located within a space rented by Customer in a 123.Net data center. Customer is solely responsible for insuring its property and filing insurance claims for losses associated therewith. If 123.Net is aware of loss or casualty to Customer’s property, 123.Net will immediately notify Customer, stating the extent of loss or damage incurred and the cause, if known. 123.Net shall bear the responsibility for insuring and shall bear the risk of any loss, damage or destruction of 123.Net’s assets, equipment or property that is not within Customer’s care, custody or control.

 

Indemnification. Customer agrees to indemnify, defend, and hold 123.Net harmless, as well as its subsidiaries, affiliates, officers, directors, employees, agents, licensors, consultants, suppliers, and any third- party Web site provider, from and against all claims, demands, actions, liabilities, losses, expenses, damages, judgments and costs (including attorneys’ fees) resulting from Customer’s violation of this Agreement, misuse or abuse of the Service, or infringement thereof by Customer or Users of Customer’s account. 123.Net reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer. Customer must not accept a settlement of any dispute relating to this contract without prior written consent of 123.Net.

 

Telecommunications Service Priority. 123.Net may provide Telecommunications Service Priority (“TSP”) to Customer for a fee. TSP is a program that authorizes national security and emergency preparedness (NS/EP) organizations to receive priority treatment for vital voice and data circuits or other telecommunications services. In the event of an emergency circumstance, if Customer has enrolled in TSP Service, 123.Net may not be able to notify Customer in advance prior to undertaking additional expense on Customer’s behalf to restore the affected Service on a priority basis. Customer agrees in advance to pay for all charges reasonably incurred by 123.Net to restore Service on a priority basis during an emergency circumstance as a result of Customer’s TSP enrollment.

 

Transfers and Assignments. Customer may not assign or transfer its rights or duties in connection with the Services and facilities provided by 123.Net without the prior written consent of 123.Net. All transfers of rights or duties herein, without the advanced permission in writing of 123.Net, shall be void and unenforceable as a matter of law.

 

Counterpart Execution and Electronic Signatures/Communications. Customer agrees that any Service Order and this Agreement as incorporated thereto may be executed in any number of counterparts, each of which will be deemed to be an original, and all counterparts, when taken together, will constitute one and the same agreement. Customer further agrees that signatures (whether in the form of a full signature or initials) on this Agreement may be delivered by facsimile or electronically in lieu of an original signature and agrees to treat facsimile or electronic signatures as original signatures for the purposes of validity, enforceability, and admissibility, that bind them to the Service Order and this Agreement. Customer further agrees to receive electronic communications through electronic mail or through the customer portal. Customer may withdraw its consent to receive electronic documents, notices, and disclosures at any time by notifying 123.Net. Customer may also request paper version of an electronic document. Customer acknowledges that 123.Net reserves the right to charge Customer a reasonable fee for the production or mailing of paper versions of electronic documents. Customer shall be responsible for providing 123.Net with up to date electronic mail contact information.

 

Statute of Limitations. Customer agrees that any claim against 123.Net, whether arising in tort, contract or otherwise, must be brought within 6 months of the date giving rise to the claim.

 

Limitation of Liability. 123.NET SHALL NOT BE LIABLE FOR ANY AND ALL: INDIRECT, INCIDENTAL, GENERAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY OR LOSS OF USE, EVEN IF CUSTOMER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AS A RESULT OF A BREACH OF THIS AGREEMENT, OR SERVICE ORDER FORM OF 123.NET. IN THE EVENT OF A BREACH OF AN OBLIGATION BY 123.NET, CUSTOMER’S DAMAGES SHALL BE LIMITED TO THE AMOUNT CUSTOMER PAID FOR the SERVICE FOR THE PRECEDING THREE (3) MONTHS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, CUSTOMER AGREES TO ACCEPT THE SERVICE ON AN “AS-IS” NON-WARRANTABLE BASIS. 123.NET SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES WITH RESPECT TO THE SERVICES AND THE PREMISES (Colocation Services only), INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OF MERCHANTABILITY AND AGAINST INFRINGEMENT. 123.NET EXERCISES NO CONTROL WHATSOEVER OVER THE CONTENT OF THE INFORMATION PASSING THROUGH THE 123.NET NETWORK OR OVER THE INTERNET. USE OF ANY INFORMATION OBTAINED OVER THE 123.NET NETWORK OR THE INTERNET IS AT CUSTOMER’S OWN RISK.