FYI Tech Solutions, LLC General Terms & Conditions

(“General Terms and Conditions”)

Article 1. Definitions

For purposes of these General Terms and Conditions, the following terms shall have the meanings specified below.

Affiliate: With respect to each party, any entity that controls, is controlled by, or is under common control with such party.  For the purposes of this definition, “control” shall mean ownership of at least fifty percent (50%) of the voting stock or other voting ownership interest in an entity.

Agreement: Collectively, these General Terms and Conditions, the Master Services Agreement executed by the Customer and accepted by FYI, any applicable Product Specific Attachment, and each binding Sales Order and/or Statement of Work.

FYI: FYI Tech Solutions, LLC that provides the Services or an operating Affiliate thereof.  References to FYI in Article 5 and Article 6 shall also include its Affiliates and their respective directors, officers, and employees.

FYI Equipment: Any and all facilities, equipment or devices provided by FYI or its authorized contractors at the Service Location(s) that are used to deliver the Services.  Notwithstanding the foregoing, inside telecommunications wiring within a Service Location, whether or not installed by FYI, shall not be considered FYI Equipment.

Confidential Information: All information regarding either party’s business that has been marked or is otherwise communicated as being “proprietary” or “confidential” or which reasonably should be known by the receiving party to be proprietary or confidential information.  Without limiting the foregoing, Confidential Information shall include, even if not marked or otherwise designated as proprietary, the Agreement, all Licensed Software, 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.  Confidential Information does not include any data transmitted over or through the Services.

Customer: The entity named on the Master Services Agreement.

Customer-Provided Equipment: All facilities, equipment, and devices supplied by Customer, or by a party not contracted by FYI, for use in connection with the Services.

Product Specific Attachment(s) or PSA(s): The additional terms and conditions applicable to each of the Services ordered by Customer under the Agreement.

Sales Order: An order form for the provision of Services to a Service Location(s) on (a) the then-current FYI form designated for such purpose or (b) such other form, or in such other manner, as may be agreed upon by the parties.  Unless otherwise indicated herein, each Statement of Work shall be considered a Sales Order.

Service(s): Service(s) provided by FYI pursuant to a Sales Order or Statement of Work.  All Services provided under the Agreement are for commercial, non-residential use only.  Except as expressly provided in a Sales Order, Statement of Work, or PSA, all Services provided under the Agreement are for domestic use only.

Service Commencement Date: With respect to each Service, “Service Commencement Date” shall have the meaning specified in the PSA applicable to such Service or in the Statement of Work, it being understood that a single Sales Order containing multiple Service Locations or Services may have multiple Service Commencement Dates.

Service Location(s): The Customer location(s) where FYI provides the Services.

Service Term: As specified in a Sales Order or Statement of Work, the duration of time (which shall commence on the Service Commencement Date) for which Services are ordered.

Statement of Work (SOW): The specific terms under which FYI will provide certain customized services to Customer, including all attached appendices and exhibits, if any.

Termination Charges: Charges that may be imposed by FYI upon early termination of a Service as specified in the applicable PSA.

Website: The FYI website where the General Terms and Conditions, PSAs, the Privacy Policy, and the AUP are posted.  The current URL for the Website is https://fyitec.com/terms-conditions (as the same may be updated by FYI from time-to-time).

Article 2. Delivery of Services

2.1            Orders.  To request Services at a Service Location(s), Customer may request from FYI a Sales Order or SOW.  If Customer wishes to move forward with the provision of the requested Service(s), Customer shall sign and return the Sales Order or SOW to FYI.  For purposes of Sales Orders, upon Customer’s signature, the Sales Order will become binding, subject to an engineering review.  SOWs shall not become binding unless and until executed by both parties.  Each Sales Order or SOW submitted by Customer may be subject to an engineering review which will determine whether and to what extent the Customer’s infrastructure, computer network, computer hardware, and/or computer software must be extended, built, or upgraded in order to provide the ordered Services.  After any such engineering review, FYI will provide Customer written notification in the event Service installation at any Service Location will require additional services, hardware or software (“Required Installation Services, Hardware, and Software”).  Notwithstanding anything to the contrary contained in this Article 2.1, Customer shall have thirty (30) days from receipt of such notice to reject the Required Installation Services, Hardware, and Software and terminate the affected Service Location(s).  In addition to the foregoing, if FYI’s cost of installing the applicable Services (including any applicable construction costs) increases following Customer’s acceptance of the Required Installation Services, Hardware, and Software such that FYI’s internal rate of return for the applicable Services is unacceptable to FYI, as reasonably determined by FYI, then (i) FYI may increase the monthly recurring charge or Required Installation Services, Hardware, and Software, as agreed to by Customer or (ii) if Customer does not agree to such increase, FYI may terminate the applicable Services to the affected Service Location upon ten (10) days’ notice to Customer, without penalty.

2.2            Access.  To deliver Services to Customer, FYI may require access within each Service Location and facility containing the Service Location (“Access”).  Within each Service Location and facility containing the Service Location, Customer shall be solely responsible for securing and maintaining such Access as FYI may require to deliver the Services.  In the event that Customer fails to secure or maintain such Access, FYI (i) may upon thirty (30) days prior written notice cancel or terminate Service at such Service Location and such termination shall be subject to applicable Termination Charges and (ii) shall be excused from its obligations with respect to the Service(s) at such Service Location (including any obligation to issue service credits) until such time as Customer provides FYI with the necessary Access.  If FYI is unable to secure or maintain Access outside a particular Service Location or facility and associated property containing the Service Location, which Access is needed to provide Services to such Service Location, Customer or FYI may cancel or terminate Service at such Service Location, without further liability beyond the termination date, upon a minimum thirty (30) days’ prior written notice to the other party.

2.3            Hazardous Materials.  If the presence of asbestos or other hazardous materials exists or is detected at a Service Location or within the building where the Service Location is located, FYI may immediately stop providing and/or installing Services until such materials are removed.  Customer shall be responsible for any additional expense incurred by FYI as a result of encountering, or in the avoidance of, hazardous materials. 

2.4            Equipment.

1. FYI Equipment.  FYI may, in its sole discretion, remove or change FYI Equipment; provided that any such removal or change does not cause a material degradation in the Services.  Customer shall not move, disconnect, attempt to repair, or otherwise tamper with any FYI Equipment or permit others to do so, and shall not use the FYI Equipment for any purpose other than as authorized by the Agreement.  Customer shall (i) provide an adequate environmentally controlled space and such electricity as may be required for installation, operation, and maintenance of the FYI Equipment and (ii) be responsible for damage to, or loss of, FYI Equipment caused by its acts or omissions, or by fire, theft, or other casualty at the Service Location(s), unless caused by the gross negligence or willful misconduct of FYI.  Any maintenance provided by FYI for the FYI Equipment under this Agreement shall be at Customer’s cost to the extent it is related to causes other than the ordinary and proper use of the FYI Equipment.  Upon termination or expiration of this Agreement and/or any Sales Order or SOW, Customer shall be responsible for the return of all applicable FYI Equipment.  Until such time as the FYI Equipment is returned to FYI, FYI may continue to invoice Customer for the monthly fee applicable to such FYI Equipment.  If any returned FYI Equipment has been damaged and/or destroyed other than by FYI or its agents, normal wear and tear excepted, FYI may, in its sole discretion, invoice Customer for the manufacturer’s list price of such FYI Equipment or the cost of repair.
2. Customer-Provided Equipment.  Unless otherwise set forth in an SOW, Customer shall have sole responsibility for providing maintenance, repair, operation, and replacement of all Customer-Provided Equipment and inside telecommunications wiring.  Neither FYI nor its employees, Affiliates, agents, or contractors shall (i) have any obligation to install, operate, or maintain Customer-Provided Equipment or (ii) be liable for any damage, loss, or destruction to Customer-Provided Equipment, unless caused by the gross negligence or willful misconduct of FYI.  Customer-Provided Equipment shall at all times be compatible with the Services.  Except as otherwise provided in an SOW, Customer shall be responsible for the payment of service charges for visits by FYI’s employees or agents to a Service Location when the service difficulty or trouble report results from Customer-Provided Equipment or facilities provided by a party not contracted by FYI.

2.5            Intellectual Property.

1. Title and intellectual property rights to (i) the Services and (ii) any computer software or code provided by FYI to use the Services, including, but not limited to, associated documentation, and all updates thereto (“Licensed Software”) are, in each case, owned by FYI, its agents, suppliers, or affiliates or their licensors or otherwise by the owners of such material.  The copying, redistribution, bundling, or publication of the Services, in whole or in part, without the express prior written consent of FYI or other owner of such material, is prohibited.
2. 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.

2.6            License Grant.  If Customer requires the use of Licensed Software from FYI in order to use the Services, Customer shall have a nonexclusive, nontransferable, and limited license to use such Licensed Software in object code only and solely to the extent necessary to use the applicable Service during the corresponding Service Term.  Customer may not claim title to, or an ownership interest in, any Licensed Software (or any derivations or improvements thereto), and Customer shall execute any documentation reasonably required by FYI, including, without limitation, end-user license agreements, for the Licensed Software.  Customer shall not: (i) copy the 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 FYI; (ii) reverse engineer, decompile, or disassemble the Licensed Software; (iii) sell, lease, license, or sublicense the Licensed Software; or (iv) create, write, or develop any derivative software or any other software program based on the Licensed Software.  Customer acknowledges that the use of Service may periodically require, and consents to FYI’s provision of, updates and/or changes to the Licensed Software resident in the FYI Equipment or Customer Provided-Equipment (“Updates”).  FYI may perform such Updates remotely or on-site, at FYI’s sole discretion.  Customer hereby consents to, and shall provide free Access for, such Updates.  If FYI has agreed to provide Updates, FYI will be excused from the applicable performance criteria and credits, and any and all liability and indemnification obligations regarding the applicable Service to the extent resulting from Customer’s failure to allow FYI to install any Updates.

Article 3. Billing & Payment

3.1            Charges; Changes to MRC; Taxes.

1. Customer agrees to pay all charges associated with the Services, including, but not limited to, any fees or payment obligations in connection with the Services imposed by governmental or quasi-governmental bodies, or by FYI, in connection with the sale, installation, use, or provision of the Services (e.g., applicable franchise fees, right of way fees, Universal Service Fund charges, etc.) regardless of whether FYI or its Affiliates pay the fees directly or are required or permitted by law to collect them from Customer.  Any failure on the part of Customer to be ready to receive Service, or any refusal on the part of Customer to receive Service, shall not relieve Customer of its obligation to pay charges for any Service that is otherwise available for use.  For the avoidance of doubt, FYI shall not be responsible for any purchases made by Customer or its end users while using the Services.
2. With respect to each Sales Order, FYI may, upon thirty (30) days prior written notice to Customer (or such longer period as may be required by law), modify the monthly recurring service charges applicable to any Services during any Renewal Term.  Customer acknowledges and agrees that such notice requirement may be satisfied by including notice of a monthly recurring service charge modification(s) in a Customer invoice.  Customer shall have thirty (30) days from receipt of any such notice to cancel the applicable Service without liability for Termination Charges.  Should Customer fail to cancel within such timeframe, Customer shall be deemed to have accepted the modified Service pricing.  Notwithstanding anything to the contrary contained in this Article 3.1(B), (i) FYI may modify equipment charges upon notice to Customer, (ii) the Customer shall not have the right to cancel services due to a change in monthly recurring service charges resulting from either a new Sales Order or SOW or modification of an existing Sales Order or SOW, and (iii) Customer shall not have the right to cancel services due to changes in billed quantities for any monthly recurring service changes that are usage-based (ex. total international call usage in minutes, the number of user licenses consumed, etc).
3. Except to the extent Customer provides a valid tax exemption certificate prior to the delivery of Service, Customer shall be responsible for the payment of any and all applicable local, state, and federal taxes or fees (however designated).  Customer shall also be responsible to pay any taxes that become applicable retroactively.

3.2            Payment Terms; Disputes.

3. Except as otherwise indicated herein or in a PSA, FYI will invoice Customer in advance on a monthly basis for all monthly recurring charges and fees arising under the Agreement.  All other charges will be billed monthly in arrears, including without limitation, certain usage-based charges.  Payment is due within thirty (30) days after the invoice date.  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 Services from the Service Commencement Date to the start of the next billing period.  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 Services that has been rejected by the bank or other financial institution.  Subject to Customer’s right to dispute charges in accordance with Article 3.2(B), any payment not made when due will be subject to a late charge equal to (i) 1.5% per month or (ii) the highest rate allowed by law, whichever is lower.  If FYI uses a collection agency or attorney to collect any amount owed by Customer or any unreturned FYI Equipment, Customer agrees to pay all reasonable costs of collection or other action.  No acceptance of partial payment(s) by FYI shall constitute a waiver of any rights to collect the full balance owed under the Agreement.
4. If Customer disputes any portion of an invoice, Customer shall pay the undisputed portion of the invoice and submit a written claim, including all substantiating documentation, to FYI for the disputed amount of the invoice by the invoice due date.  The parties shall negotiate in good faith to resolve any billing dispute submitted by Customer pursuant to this Article 3.2(B).  Under no circumstances may Customer submit a billing dispute to FYI later than ninety (90) days following the invoice date.

3.3            Credit Approval and Deposits.  Delivery of Services may be subject to credit approval.  Customer authorizes FYI to make inquiries and to receive information about Customer’s credit history from others and to enter this information in Customer’s records.  FYI, in its sole discretion, may deny the Services based upon an unsatisfactory credit history.  Subject to applicable regulations, FYI may require Customer to make a deposit as a condition to FYI’s provision of the Services.

Article 4. Term & Termination

4.1            Sales Order Term.  Upon the expiration of the Service Term applicable to a Sales Order, each Service Term shall automatically renew for successive periods of one (1) year each (each, a “Renewal Term”), unless prior written notice of non-renewal is delivered by either party to the other at least thirty (30) days before the expiration of the Service Term or the then current Renewal Term.  To the extent the initial Service Term or a Renewal Term applicable to a Sales Order extends beyond the expiration date of the MSA Term, such Sales Order shall continue to be governed by the terms and conditions of the Agreement.  The MSA Term commences on the Effective Date and continues for the time set forth on the Master Services Agreement Cover Page.

4.2            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) or SOW(s) at any time, upon thirty (30) days prior written notice to FYI (subject to applicable Termination Charges).

4.3            Termination for Cause.

1. If either Party is in material breach of the Agreement and the breach continues unremedied for thirty (30) days after written notice of default, the other party may terminate for cause any Sales Order or SOW materially affected by the breach.  In addition to its other remedies, if the Customer is in breach of a payment obligation and fails to make payment in full within thirty (30) days after written notice of default, FYI may suspend the Service(s) under the affected Sales Order(s) or SOW(s).
2. Subject to applicable law, either party may terminate a Sales Order or SOW immediately upon notice to the other party if the other party has become insolvent as defined under the U.S. Bankruptcy Code, institutes or has instituted against it any bankruptcy, reorganization, det arrangement or assignment for the benefit of creditors, other proceeding under any bankruptcy or insolvency law or dissolution, receivership, or liquidation proceeding (and if such proceeding is instituted against it, such proceeding is not dismissed within sixty (60) days).
3. FYI may terminate any Sales Order and/or the Agreement immediately if Customer or its employees, agents, or representatives threaten, harass, or use vulgar or inappropriate language toward FYI personnel.

4.4            Effect of Expiration/Termination of a Sales Order or SOW.  Upon the expiration or termination of a Sales Order or SOW for any reason, FYI (i) shall disconnect the applicable Service and (ii) may assess and collect from Customer applicable Termination Charges.  Termination by either party of a Sales Order or SOW does not waive any other rights or remedies that it may have under this Agreement.

Article 5. Limitation of Liability; Disclaimer of Warranties

5.1 Limitation of Liability.

1. THE AGGREGATE LIABILITY OF FYI AND ITS AGENTS, SUPPLIERS, AND LICENSORS FOR ANY AND ALL LOSSES, DAMAGES, AND CAUSES OF ACTION 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 FYI DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT FOR WHICH DAMAGES ARE CLAIMED.  THIS LIMITATION SHALL NOT APPLY TO INDEMNIFICATION OBLIGATIONS.
2. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, 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 OF REVENUE, LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT; PROVIDED, THAT, THE FOREGOING LIMITATION SHALL NOT LIMIT CUSTOMER’S LIABILITY FOR CHARGES OWED FOR THE SERVICES, FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY FYI, OR FOR TERMINATION CHARGES.
3. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FYI AND ITS AGENTS, SUPPLIERS, AND LICENSORS UNDER THIS AGREEMENT FOR ALL INDEMNIFICATION OF INTELLECTUAL PROPERTY CLAIMS UNDER SECTION 6(i) OF THESE GENERAL TERMS AND CONDITIONS EXCEED THE GREATER OF (I) ONE (1) MILLION DOLLARS ($1,000,000) AND (II) THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE INTELLECTUAL PROPERTY CLAIM FIRST AROSE.

5.2            Disclaimer of Warranties.

1. TO THE MAXIMUM EXTENT ALLOWED BY LAW, FYI EXPRESSLY DISCLAIMS ALL EXPRESS, IMPLIED, AND/OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.  Without limiting the generality of the foregoing, and except as otherwise identified in a PSA or SOW, FYI does not warrant that the Services, FYI Equipment, or Licensed Software will be uninterrupted, error-free, or free of latency or delay, or that the Services, FYI Equipment, or Licensed Software will meet Customer’s requirements, or that the Services, FYI Equipment, or Licensed Software will prevent unauthorized access by third parties.  Customer acknowledges and agrees that the Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to severe injury to business, persons, property, or environment.
2. Notwithstanding anything to the contrary contained in the Agreement, in no event shall FYI and its agents, suppliers, and licensors be liable for any loss, damage, or claim arising out of or related to: (1) content or data received or distributed by Customer or its users through the Services; (2) any act or omission of Customer, its users, or third parties not under the control of FYI; (3) interoperability, interaction, or interconnection of the Services with applications, equipment, services, or networks provided by Customer or third parties not under the control of FYI; or (4) 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.  Customer is solely responsible for backing up its data, files, and software prior to the installation of Service and at regular intervals thereafter.

5.3            Exclusive Remedies.  Customer’s sole and exclusive remedies are as expressly set forth in the Agreement.  In those states where Customer’s remedies cannot be so limited, the liability of FYI is limited to the maximum extent permitted by law.

Article 6. Indemnification

6.1            FYI’s Indemnification Obligations.  Subject to Sections 5.1(B) and 5.1(C) and any other limitations contained in the Agreement, FYI shall indemnify, defend, and hold harmless Customer, its Affiliates and their respective employees, directors, officers, and agents from and against all damages, liabilities, losses, and expenses (including reasonable attorneys’ fees) arising out of a claim or demand by a third party (“Claims”) incurred as a result of (i) infringement of U.S. patent or copyright law based solely on FYI Equipment or Licensed Software; provided, that, FYI shall have no liability for any claim of infringement arising from: (a) FYI’s compliance with any designs, specifications, or instructions of Customer; (b) modification or alteration of the Licensed Software or FYI Equipment by Customer or a third party without the prior knowledge and written approval of an authorized officer of FYI; (c) use of the Licensed Software or FYI Equipment in a way not authorized in writing by an authorized officer of FYI; and/or (d) Customer’s failure to use an updated version of the Licensed Software or FYI Equipment which has been provided, or made available, to Customer and (ii) damage to tangible personal property or real property, and personal injuries (including death) to the extent caused by the gross negligence or willful misconduct of FYI while working on the Service Locations.  For purposes of this Article 6.1, any claims by any end-user of the Services shall not be included in the definition of Claims.

6.2            Customer’s Indemnification Obligations.  Subject to Section 5.1(B), Customer shall indemnify, defend, and hold harmless FYI and its agents, suppliers, and licensors from any and all Claims arising on account of or in connection with Customer’s and its users’ use or sharing of the Service provided under the Agreement, including with respect to: (i) any content received or distributed by Customer or its users through the Service; (ii) libel, infringement of copyright, or unauthorized use of trademark, trade name, or service mark arising out of communications via the Service; (iii) for patent infringement arising from Customer’s combining or connection of Customer-Provided Equipment to use the Service; and (iv) for damage arising out of the gross negligence or willful misconduct of Customer. FYI shall not bear responsibility for the implementation of any governance, regulatory, or compliance requirements applicable to the Customer, including but not limited to those mandated by the Health Insurance Portability and Accountability Act (HIPAA), the Sarbanes-Oxley Act (SOX), the Payment Card Industry Data Security Standard (PCI DSS), the Federal Information Processing Standards (FIPS), the General Data Protection Regulation (GDPR), and any other similar federal, state, or international regulatory frameworks (“Compliance Requirements”). The Customer hereby agrees to indemnify, defend, and hold harmless FYI, its officers, directors, employees, agents, and affiliates from and against any and all claims, liabilities, damages, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any noncompliance or failure to comply with any Compliance Requirements.

6.3            Indemnification Procedures.  To the extent a party may be entitled to indemnification under this Agreement (an “Indemnified Party”), such Indemnified Party shall (i) promptly notify the other party (the “Indemnifying Party”) in writing of any pending or threatened Claim that gives rise to a right of indemnification (an “Action”) and (ii) cooperate in every reasonable way to facilitate the defense or settlement of such Action.  The Indemnifying Party shall assume the defense of any Action with counsel selected by the Indemnifying 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 Action; 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 Action without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned, or delayed.

Article 7. Confidential Information & Publicity

7.1            Disclosure and Use.  All Confidential Information disclosed by either party shall, during the term of the Agreement and for two (2) years after the expiration or termination thereof (or such longer period as may be required by law), not be disclosed to any third party without the disclosing party’s express written consent.  Notwithstanding the foregoing, such information may be disclosed (A) to the receiving party’s employees, affiliates, and agents who have a need to know for the purpose of performing under this Agreement, using the Services, and rendering the Services (provided that in all cases the receiving party shall take appropriate measures prior to disclosure to its employees, affiliates, and agents designed to protect against unauthorized use or disclosure) or (B) as otherwise authorized by this Agreement.  Each party’s confidentiality obligations hereunder shall not apply to information that: (A) is already known to the receiving party without a pre-existing restriction as to disclosure; (B) is or becomes publicly available without fault of the receiving party; (C) 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; or (D) is developed independently by the receiving party without use of the disclosing party’s Confidential Information.  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 less than a reasonable degree of care.  If either party is required to disclose Confidential Information pursuant to a judicial order or other compulsion of law, such party shall be permitted to make such disclosure provided that it: (a) limits the disclosure to only that information which is required to be disclosed by such order or legal requirement, (b) if permitted, provides the disclosing party with prompt notice of such order or legal requirement, and (c) reasonably assists the disclosing party in obtaining a protective order, if requested and at the disclosing party’s expense.

7.2            Publicity.  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 FYI and Customer without the prior written consent of the other party.

7.3            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 7, including, but not limited to, injunctive relief.

Article 8. Prohibited Uses; FYI Policies

8.1            Prohibited Uses; FYI 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 the FYI Acceptable Use Policy (“AUP”) available on the Website; (iii) for any use as to which Customer has not obtained all required government approvals, authorizations, licenses, consents, or permits; or (iv) to interfere unreasonably with the use of Services or the operation of FYI’s services.  Customer is responsible for the compliance of its users with the provisions of the Agreement.  Customer acknowledges and agrees that use of the Services, including by Customer, its Affiliates, and any users, shall be subject to the AUP.  Notwithstanding anything to the contrary contained in Section 4.3, FYI reserves the right to act immediately and without notice to (a) terminate or suspend the Agreement and/or any Services if FYI determines that such use or information is in violation of this Article 8.1 and such termination will constitute a termination for cause and (b) terminate or suspend the Services in the event of fraudulent use of the Services.  Customer acknowledges and agrees that FYI is not obligated to detect or report unauthorized or fraudulent use of the Services to Customer.

8.2            Privacy Policy.  The Services utilize, in whole or in part, the public Internet and third-party networks to transmit voice and other communications.  Customer acknowledges and understands that FYI cannot guarantee that communication over these networks are completely secure.  Customer agrees that FYI may access all features of Customer’s account and the Service to determine whether the Service is being used fraudulently and/or in violation of this Agreement, and for any other purposes.  CUSTOMER AGREES THAT FYI SHALL NOT BE LIABLE FOR ANY LACK OF PRIVACY.  FYI is committed to respecting its customer’s privacy relating to personally identifiable information.  Once Customer or its representatives, employees, or guests choose to provide personally identifiable information, it will only be used in the context of Customer’s relationship with FYI.  FYI will not sell, rent, or lease personally identifiable information to others.  Upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, FYI may disclose personally identifiable information.  Please refer to our Privacy Policy for additional information.

8.3           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.  For the avoidance of doubt, this prohibition includes Customer bundling the Services with any services or components of Customer that are then sold to end users of any kind.

8.4            Monitoring.  FYI shall have no obligation to monitor postings or transmissions made in connection with the Services, however, Customer acknowledges and agrees that FYI and its agents shall have the right to monitor any such postings and transmissions from time to time and to use and disclose them in accordance with this Agreement, and as otherwise required by law or government request.  FYI reserves the right to refuse to upload, post, publish, transmit or store any information or materials, in whole or in part, that, in FYI’s sole discretion, is unacceptable, undesirable or in violation of this Agreement.

Article 9. Miscellaneous Terms

9.1            Force Majeure.  Neither party nor its Affiliates 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 cuts, acts of regulatory or governmental agencies, unforeseeable third party actions, or other causes beyond the party’s reasonable control, except that Customer’s obligations shall not be excused to pay for (i) damages to FYI-owned equipment or (ii) Services provided under the Agreement.  Changes in economic, business, or competitive condition shall not be considered force majeure events.

9.2            Assignment or Transfer.  Customer shall not assign any right, obligation, or duty, in whole or in part, nor any other interest hereunder, without the prior written consent of FYI, which shall not be unreasonably withheld.  Any assignment in violation of this provision shall be deemed null and void.  All obligations and duties of either party hereunder shall be binding on all successors-in-interest and permitted assigns of such party.

9.3            Notices.  Except as otherwise identified herein, any notice sent pursuant to the Agreement shall be deemed given and effective when sent by e-mail (confirmed by certified mail), or when delivered by overnight express or other express delivery service, in each case, to the following addresses (or to such other addresses as a party may designate by written notice to the other party): (i) with respect to Customer, to the address set forth on any Sales Order; or (ii) with respect to FYI, to: FYI Tech Solutions, LLC, Attn: Director of Administration, 875 West Poplar Avenue, Suite 23-334, Collierville, TN 38017, with a copy to [email protected].

9.4            Amendments; Changes to the Agreement.

1. The Agreement may not be amended except by a written agreement executed by the parties; provided, that, notwithstanding the foregoing, FYI may change or modify these General Terms and Conditions and the PSAs, and any related policies (including the AUP and Privacy Policy) from time to time (“Revisions”) by posting such Revisions to the Website.  The Revisions are effective upon posting to the Website.  Customer will receive notice of any Revisions in the next applicable monthly invoice.  Customer shall have thirty (30) calendar days from the invoice notice of such Revisions to provide FYI with written notice that the Revisions adversely affect Customer’s use of the Service(s).  If, after such notice, FYI is able to verify such adverse effect but is unable to reasonably mitigate the Revisions’ impact on such Services, then Customer may terminate the impacted Service(s) without further obligation (including Termination Charges) to FYI beyond the termination date.  This shall be Customer’s sole and exclusive remedy for any Revisions.  Customer acknowledges and agrees that terms or conditions contained in any Customer purchase order or similar Customer order form (regardless of whether executed by FYI), or restrictive endorsements or other statements on any Customer form of payment, shall be void and of no force or effect.  Without limitation to the foregoing, if (i) Customer requires FYI to execute a Customer purchase order or other Customer order form for a Service or as a condition to receiving payment for the same and (ii) FYI executes such purchase order or Customer order form, Customer acknowledges and agrees that (1) FYI’s execution is solely for the purpose of assisting Customer in satisfying its internal procurement requirements and (2) any terms and conditions contained in such purchase order or Customer order form shall be null and void and of no force or effect.
2. The parties acknowledge that the respective rights and obligations of each party as set forth in this Agreement are based on applicable law and regulations as they exist on the date of the Agreement’s execution.  The parties agree that in the event of any legislative, regulatory, or judicial order, rule, or regulation, or decision in any arbitration or other dispute resolution proceeding, or other legal or regulatory action that materially affects the provisions of this Agreement or the economic terms of the Agreement, FYI may, by providing written notice to the Customer, require that the affected provisions of the Agreement be renegotiated in good faith.  If Customer refuses to enter such renegotiations, or the parties are unable to reach resolution on new Agreement terms, FYI may, in its sole discretion, terminate this Agreement, in whole or in part, upon sixty (60) days written notice to Customer.

9.5            Tariffs.  Notwithstanding anything to the contrary in the Agreement, FYI may be required to file with regulatory agencies tariffs for certain Services.  In such event, the terms set forth in the Agreement may, under applicable law, be superseded by the terms and conditions of the tariffs.  Without limiting the generality of the foregoing, in the event of any inconsistency between the Agreement and applicable Sales Orders on one hand, and the relevant tariffs on the other hand, the rates and other terms set forth in the Agreement and applicable Sales Orders will be treated as individual case-basis arrangements to the maximum extent permitted by law.  If FYI voluntarily or involuntarily cancels or withdraws a tariff under which a Service is provided to Customer, the Service will thereafter be provided pursuant to the Agreement and the terms and conditions contained in the tariff immediately prior to its cancellation or withdrawal.  In the event that FYI is required by a governmental authority to modify a tariff under which Service is provided to Customer in a manner that is material and adverse to the Customer, the Customer may terminate the applicable Sales Order upon a minimum thirty (30) days’ prior written notice to the other party, without further liability.

9.6            Compliance with Laws.  Each of the Parties agrees to comply with all local, state and federal laws and regulations and ordinances applicable to such Party in the performance of its respective rights and obligations under this Agreement.

9.7            Consent to Communications from FYI.  Customer acknowledges and agrees that FYI or third parties acting on FYI’s behalf may call or text Customer at any telephone number that Customer provides to FYI or that FYI issues to Customer, and may do so for any purpose relating to Customer’s account and/or the Services to which Customer purchased.  Customer expressly consents to receive such calls and texts and agree that these calls and texts are not unsolicited.  Customer acknowledges and agrees that these calls and texts may entail the use of an automatic telephone dialing system and/or artificial or prerecorded messages.  Customer may not opt-out of receiving certain communications pertaining to Customer’s account, including but not limited to communications regarding emergencies, fraud or other violations of law, security issues, and harm caused to the Network.  Message frequency depends on Customer’s activity with the Services.  Message and/or data rates may apply.

9.8            Entire Understanding; Construction; Survival; Headings; No Waiver.  The Agreement supersedes all prior agreement between the parties with respect to its subject matter and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to the subject matter hereof.  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 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.  The rights and obligations of either party that by their nature would continue beyond the termination or expiration of the Agreement shall survive termination or expiration of the Agreement.  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.  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 two or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same agreement.  The execution and delivery of this Agreement by delivery of a facsimile, .pdf or electronic copy bearing the facsimile, .pdf or electronic signature of a party hereto shall constitute a valid and binding execution and delivery of this Agreement, and such facsimile, .pdf or electronic copies shall constitute enforceable original documents for all purposes.  Each party represents and warrants that the persons who executes the Agreement on its behalf are duly authorized to do so.

9.9            Choice of Law.  This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Tennessee without regard to its conflict of laws principles.  Any claim or controversy arising out of or relating to this Agreement shall be brought exclusively in federal or state court located in Memphis, Tennessee and the parties hereby consent to personal jurisdiction and venue in such court.  Both parties hereby waive any right to a trial by jury.

9.10         No Third-Party Beneficiaries; Independent Contractors.  Except as otherwise specifically set forth herein, 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.  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.  Each party acknowledges and agrees that any interpretation of this Agreement may not be construed against a party by virtue of that party having drafted the provisions.

9.11         Export Law and Regulation.  Customer acknowledges that any products, software, and technical information (including, but not limited to, services 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 and this Agreement.