Terms & Conditions
Affiliate: Any entity that controls is controlled by or is under common control with Brightstar.
Agreement, Enterprise Services Master Services Agreement or MSA: Consists of the Enterprise Master Services Agreement Cover Page executed by the Customer and accepted by Brightstar, these Enterprise Services General Terms and Conditions (“General Terms and Conditions”), the then current Product-Specific Attachment for each ordered Service (“PSA”), any written amendments to the Agreement executed by both Parties including any supplemental terms and conditions (“Amendment(s)”), and each Sales Order accepted by Brightstar under the Agreement.
Amendment(s): Any written amendment to the Agreement, executed by both Parties, including any supplemental terms and conditions.
Brightstar: The operating company affiliate or subsidiary of Brightstar Communications, Inc. that provides the Services under the Enterprise Services Master Service Agreement. References to Brightstar in the Limitation of Liability, Disclaimer of Warranties and Indemnification Articles shall also include its directors, officers, employees, agents, Affiliates, suppliers, licensors, successors, and assigns, as the case may be.
Brightstar Website or Website: The Brightstar website where the General Terms and Conditions, PSAs and other Brightstar security and privacy policies applicable to the Agreement will be posted. The current URL for the Website is http://brightstarone.com. Brightstar may update the Website documents and/or URL from time to time.
Brightstar Equipment: Any and all facilities, equipment or devices provided by Brightstar or its authorized contractors at the Service Location(s) that are used to deliver any of the Services including, but not limited to, all terminals, wires, modems, lines, circuits, ports, routers, gateways, switches, channel service units, data service units, cabinets, and racks. Notwithstanding the above, inside telephone wiring within the Service Location, whether or not installed by Brightstar, shall not be considered Brightstar Equipment.
Confidential Information: All information regarding either Party’s business which 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 generality of the foregoing, Confidential Information shall include, even if not marked, 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.
Customer: The company, corporation, or other entity named on the Enterprise Services Master Service Agreement Cover Page and a Sales Order.
Customer-Provided Equipment (CE): Any and all facilities, equipment or devices supplied by Customer for use in connection with the Services.
Demarcation Point: The point of interconnection between the Network and Customer’s provided equipment located at a Service Location. In some cases the Demarcation Point shall be the User to Network Interface (UNI) port on Brightstar Equipment at a Service Location.
General Terms and Conditions: These Enterprise Services General Terms and Conditions.
Licensed Software: Computer software or code provided by Brightstar or required to use the Services, including without limitation, associated documentation, and all updates thereto.
Network: Consists of the Brightstar Equipment, facilities, fiber optic cable associated with electronics and other equipment used to provide the Services.
Party: A reference to Brightstar or the Customer; and in the plural, a reference to both companies.
Product Specific Attachment(s) (PSA): The additional terms and conditions applicable to Services ordered by Customer under the Agreement.
Revenue Commitment: A commitment by Customer to purchase a minimum volume of Service during an agreed term, as set forth in a Sales Order.
Sales Order: A request for Brightstar to provide the Services to a Service Location(s) submitted by Customer to Brightstar (a) on a then-current Brightstar form designated for that purpose or (b) if available, through a Brightstar electronic order processing system designated for that purpose.
Service(s): A service provided by Brightstar pursuant to a Sales Order. All Services provided under the Agreement are for commercial use only. Services available under this Agreement are identified on the Website.
Service Commencement Date: The date(s) on which Brightstar first makes Service available for use by Customer. A single Sales Order containing multiple Service Locations or Services may have multiple Service Commencement Dates.
Service Location(s): The Customer location(s) where Brightstar provides the Services, to the extent the Customer owns, leases, or otherwise controls such location(s).
Service Term: The duration of time (commencing on the Service Commencement Date) for which Services are ordered, as specified in a Sales Order.
Tariff: A federal or state Brightstar tariff and the successor documents of general applicability that replace such tariff in the event of detariffing.
Termination Charges: Charges that may be imposed by Brightstar if, prior to the end of the applicable Service Term (a) Brightstar terminates Services for cause or (b) Customer terminates Services without cause. Termination Charges are as set forth in each PSA, and are in addition to any other rights and remedies under the Agreement.
ARTICLE 1. CHANGES TO THE AGREEMENT TERMS
Brightstar may change or modify the Agreement, and any related policies from time to time (“Revisions”) by posting such Revisions to the Brightstar Website. The Revisions are effective upon posting to the Website. Customer will receive notice of the Revisions in the next applicable monthly invoice. Customer shall have thirty (30) calendar days from the invoice notice of such Revisions to provide Brightstar with written notice that the Revisions adversely affect Customer’s use of the Service(s). If after notice Brightstar is able to verify such adverse effect but is unable to reasonably mitigate the Revision’s impact on such Services, then Customer may terminate the impacted Service(s) without further obligation to Brightstar beyond the termination date, including Termination Charges, if any. This shall be Customer’s sole and exclusive remedy.
ARTICLE 2. DELIVERY OF SERVICE
- Orders. Customer shall submit to Brightstar a properly completed Sales Order to initiate Service to a Service Location(s). A Sales Order shall become binding on the Parties when (i) it is specifically accepted by Brightstar either electronically or in writing, (ii) Brightstar begins providing the Service described in the Sales Order or (iii) Brightstar begins Custom Installation (as defined in Article 2.7) for delivery of the Services described in the Sales Order, whichever is earlier. When a Sales Order becomes effective it shall be deemed part of, and shall be subject to, the Agreement.
- Access. In order to deliver certain Services to Customer, Brightstar may require access, right-of-way, conduit, and/or common room space (“Access”), both within and/or outside each Service Location. Customer shall provide an adequate environmentally controlled space and such electricity as may be required for installation, operation, and maintenance of the Brightstar Equipment used to provide the Services within the Service Location(s). Customer shall be responsible for securing, and maintaining on an initial and ongoing basis during the applicable Service Term and/or Renewal Term, such Access within each Service Location unless Brightstar has secured such access prior to this Agreement. In the event that Customer, fails to secure or maintain such Access within a particular Service Location, Brightstar may cancel or terminate Service at such particular Service Location, without further liability, upon written notice to Customer. In such event, if Brightstar has incurred any costs or expense in installing or preparing to install the Service that it otherwise would not have incurred, a charge equal to those costs and expenses shall apply to Customer’s final invoice for that particular Service Location. If Brightstar is unable to secure or maintain Access outside a particular Service Location, which Access is needed to provide Services to such Service Location, Customer or Brightstar may cancel or terminate Service at such particular Service Location, without further liability beyond the termination date, upon a minimum thirty (30) days’ prior written notice to the other party. In such event, if Brightstar has incurred any costs or expense in installing or preparing to install the Service that it otherwise would not have incurred, Brightstar shall be responsible for such costs or expenses. Any other 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.
- 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, Brightstar may immediately stop providing Services until such a time as such materials are removed. Alternatively Customer may notify Brightstar to install the applicable portion of the Service in areas of any such Service Location not containing such hazardous material. Any additional expense incurred by Brightstar as a result of encountering hazardous materials, including but not limited to, any additional equipment shall be borne by Customer. Customer shall use reasonable efforts to maintain its property and Service Locations in a manner that preserves the integrity of the Services.
- Brightstar Equipment. At any time Brightstar may remove or change Brightstar Equipment in its sole discretion in connection with providing the Services. Customer shall not move, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any Brightstar Equipment or permit others to do so, and shall not use the Brightstar Equipment for any purpose other than that authorized by the Agreement. Brightstar shall maintain Brightstar Equipment in good operating condition during the term of this Agreement; provided, however, that such maintenance shall be at Brightstar’s expense only to the extent that it is related to and/or resulting from the ordinary and proper use of the Brightstar Equipment. Customer is responsible for damage to, or loss of, Brightstar Equipment caused by its acts or omissions, and its noncompliance with this Article, or by fire, theft or other casualty at the Service Location(s), unless caused by the gross negligence or willful misconduct of Brightstar.
- Ownership, Impairment and Removal of Network. The Network is and shall remain the property of Brightstar regardless of whether installed within or upon the Service Location(s) and whether installed overhead, above, or underground and shall not be considered a fixture or an addition to the land or the Service Location(s) located thereon. Customer agrees that it shall take no action that directly or indirectly impairs Brightstar’s title to the Network, or any portion thereof, or exposes Brightstar to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the Parties. Nothing in this Agreement shall preclude Brightstar from using the Network for services provided to other Brightstar customers. For a period of twelve (12) months following Brightstar’s discontinuance of Service to the Service Location(s), Brightstar retains the right to remove the Network including, but not limited to, that portion of the Network that is located in the Service Location. To the extent Brightstar removes such portion of the Network it shall be responsible for returning the Service Location(s) to its prior condition, reasonable wear and tear excepted.
- Customer-Provided Equipment (“CE”). Brightstar shall have no obligation to install, operate, or maintain CE. Customer shall have sole responsibility for providing maintenance, repair, operation and replacement of all CE, inside telephone wiring and other Customer equipment and facilities on the Customer’s side of the Demarcation Point. Neither Brightstar nor its employees, Affiliates, agents or contractors will be liable for any damage, loss, or destruction to CE, unless caused by the gross negligence or willful misconduct of Brightstar. CE shall at all times be compatible with the Network as determined by Brightstar in its sole discretion. In addition to any other service charges that may be imposed from time to time, Customer shall be responsible for the payment of service charges for visits by Brightstar’s employees or agents to a Service Location when the service difficulty or trouble report results from the use of CE or facilities provided by any party other than Brightstar.
- Engineering Review. Each Sales Order submitted by Customer may be subject to an engineering review. The engineering review will determine whether and to what extent the Network must be extended, built or upgraded (”Custom Installation”) in order to provide the ordered Services at the requested Service Location(s). Brightstar will provide Customer written notification in the event Service installation at any Service Location will require an additional non-recurring installation fee (“Custom Installation Fee”). Custom Installation Fees may also be referred to as Construction Charges on a Sales Order or Invoice. Customer will have five (5) days from receipt of such notice to reject the Custom Installation Fee and terminate, without further liability, the Sales Order with respect to the affected Service Location(s). For certain Services, the Engineering Review will be conducted prior to Sales Order submission. In such case, Customer will have accepted the designated Custom Installation Fee upon submission of the applicable Sales Order.
- Service Acceptance. Except as may otherwise be identified in the applicable PSA, the Service Commencement Date shall be the date Brightstar completes installation and connection of the necessary facilities and equipment to provide the Service at a Service Location.
- Administrative Website. Brightstar may furnish Customer with one or more user identifications and/or passwords for use on the Administrative Website. Customer shall be responsible for the confidentiality and use of such user identifications and/or passwords and shall immediately notify Brightstar if there has been an unauthorized release, use or other compromise of any user identification or password. In addition, Customer agrees that its authorized users shall keep confidential and not distribute any information or other materials made available by the Administrative Website. Customer shall be solely responsible for all use of the Administrative Website, and Brightstar shall be entitled to rely on all Customer uses of and submissions to the Administrative Website as authorized by Customer. Brightstar shall not be liable for any loss, cost, expense or other liability arising out of any Customer use of the Administrative Website or any information on the Administrative Website. Brightstar may change or discontinue the Administrative Website, or Customer’s right to use the Administrative Website, at any time. Additional terms and policies may apply to Customer’s use of the Administrative Website. These terms and policies will be posted on the site.
ARTICLE 3. BILLING AND PAYMENT
- Charges. Except as otherwise provided in the applicable PSA, Customer shall pay Brightstar one hundred percent (100%) of the Custom Installation Fee prior to the installation of Service. Customer further agrees to pay all charges associated with the Services, as set forth or referenced in the applicable PSA, Sales Order(s) or invoice from Brightstar. These charges may include, but are not limited to standard and custom non-recurring installation charges, monthly recurring service charges, usage charges including without limitation charges for the use of Brightstar Equipment, per-call charges, pay-per-view charges, charges for service calls, maintenance and repair charges, and applicable federal, state, and local taxes, fees, surcharges and recoupments (however designated). Some Services such as measured and per-call charges, pay-per-view movies or events, and interactive television (as explained in the applicable PSA) may be invoiced after the Service has been provided to Customer. Except as otherwise indicated herein or in the applicable PSA(s) monthly recurring charges for Ethernet, Video and Internet Services that are identified on a Sales Order shall not increase during the Service Term. Except as otherwise indicated herein or in the Sales Order(s), Voice Service pricing, charges and fees can be found in the applicable PSA.
- Third-Party Charges. Customer may incur charges from third party service providers that are separate and apart from, or based on the amounts charged by Brightstar. These may include, without limitation, charges resulting from wireless services including roaming charges, accessing on-line services, calls to parties who charge for their telephone based services, purchasing or subscribing to other offerings via the Internet or interactive options on certain Video services, or otherwise. Customer agrees that all such charges, including all applicable taxes, are Customer’s sole responsibility. In addition, Customer is solely responsible for protecting the security of credit card information provided to others in connection with such transactions.
- Payment of Bills. Except as otherwise indicated herein or in a PSA, Brightstar 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 and third party pass through fees. Payment is due upon presentation of an invoice. Payment will be considered timely made to Brightstar if received within thirty (30) days after the invoice date. Any charges not paid to Brightstar within such period will be considered past due. If a Service Commencement Date is not the first day of a billing period, Customer’s first monthly invoice shall include any pro-rated charges for the Services, from the date of installation to the start of the next billing period. In certain cases, Brightstar may agree to provide billing services on behalf of third parties, as the agent of the third party. Any such third-party charges shall be payable pursuant to any contract or other arrangement between the third party and Customer and/or Brightstar. Brightstar shall not be responsible for any dispute regarding these charges between Customer and such third party. Customer must address all such disputes directly with the third party.
- Partial Payment. Partial payment of any bill will be applied to the Customer’s outstanding charges in amounts and proportions solely determined by Brightstar. No acceptance of partial payment(s) by Brightstar shall constitute a waiver of any rights to collect the full balance owed under the Agreement.
- Credit Approval and Deposits. Initial and ongoing delivery of Services may be subject to credit approval. Customer shall provide Brightstar with credit information requested by Brightstar. Customer authorizes Brightstar to make inquiries and to receive information about Customer’s credit history from others and to enter this information in Customer’s records. Customer represents and warrants that all credit information that it provides to Brightstar will be true and correct. Brightstar, in its sole discretion, may deny the Services based upon an unsatisfactory credit history. Additionally, subject to applicable regulations, Brightstar may require Customer to make a deposit (in an amount not to exceed an estimated two months charge for the Services) as a condition to Brightstar’s provision of the Services, or as a condition to Brightstar’s continuation of the Services. The deposit will not, unless explicitly required by law, bear interest and shall be held by Brightstar as security for payment of Customer’s charges. Brightstar may apply the deposit to any delinquent Customer charges upon written notice to Customer. If Brightstar uses any or all of the deposit to pay an account delinquency, Customer will replenish the deposit by that amount within five (5) days of its receipt of written notice from Brightstar. If the provision of Service to Customer is terminated, or if Brightstar determines in its sole discretion that such deposit is no longer necessary, then the amount of the deposit (plus any required deposit interest) will be credited to Customer’s account or will be refunded to Customer, as determined by Brightstar.
- Taxes and Fees. 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 also will be responsible to pay any Service fees, payment obligations and taxes that become applicable retroactively.
- Other Government-Related Costs and Fees. Brightstar reserves the right to invoice Customer for any fees or payment obligations in connection with the Services imposed by governmental or quasi-governmental bodies in connection with the sale, installation, use, or provision of the Services, including, without limitation, applicable franchise fees, right of way fees and Universal Service Fund charges (if any), regardless of whether Brightstar or its Affiliates pay the fees directly or are required by an order, rule, or regulation of a taxing jurisdiction to collect them from Customer. Taxes and other government-related fees and surcharges may be changed with or without notice, In the event that any newly adopted law, rule, regulation or judgment increases Brightstar’s costs of providing Services, Customer shall pay Brightstar’s additional costs of providing Services under the new law, rule, regulation or judgment.
- Disputed Invoice. If Customer disputes any portion of an invoice by the due date, Customer must pay fifty percent (50%) of the disputed charges, in addition to the undisputed portion of the invoice and submit a written claim, including all documentation substantiating Customer’s claim, to Brightstar for the disputed amount of the invoice by the invoice due date. The Parties shall negotiate in good faith to resolve any billing dispute. Brightstar will refund/credit all valid disputes resolved in Customer’s favor as of the date the disputed charges first appeared on the Customer’s invoice.
- Past-Due Amounts. Any payment not made when due will be subject to a late charge of 1.5% per month or the highest rate allowed by law on the unpaid invoice, whichever is lower. If Customer’s account is delinquent, Brightstar may refer the account to a collection agency or attorney that may pursue collection of the past due amount and/or any Brightstar Equipment which Customer fails to return in accordance with the Agreement. If Brightstar is required to use a collection agency or attorney to collect any amount owed by Customer or any unreturned Brightstar Equipment, Customer agrees to pay all reasonable costs of collection or other action. The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to Brightstar under the Agreement or at law or in equity.
- Rejected Payments. Except to the extent otherwise prohibited by law, Customer will be assessed a service charge up to the full amount permitted under applicable law for any check or other instrument used to pay for the Services that has been rejected by the bank or other financial institution.
- Fraudulent Use of Services. Customer is responsible for all charges attributable to Customer with respect to the Service(s), even if incurred as the result of fraudulent or unauthorized use of the Service. Brightstar may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to Customer. Brightstar reserves the right to restrict, suspend or discontinue providing any Service in the event of fraudulent use of Customer’s Service.
ARTICLE 4. TERM; REVENUE COMMITMENT
- Agreement Term. Upon execution of the Agreement, Customer shall be allowed to submit Sales Orders to Brightstar during the term referenced on the Master Service Agreement Cover Page (“MSA Term”). After the expiration of the initial MSA Term, Brightstar may continue to accept Sales Orders from Customer under the Agreement, or require the Parties to execute a new agreement. This Agreement shall continue in effect until the expiration or termination date of the last Sales Order entered under the Agreement, unless terminated earlier in accordance with the Agreement.
- Sales Order Term/Revenue Commitment. The applicable Service Term and Revenue Commitment (if any) shall be set forth in the Sales Order. Unless otherwise stated in these terms and conditions or the applicable PSA, if a Sales Order does not specify a term of service, the Service Term shall be one (1) year from the Service Commencement Date. In the event Customer fails to satisfy a Revenue Commitment, Customer will be billed a shortfall charge pursuant to the terms of the applicable PSA.
- Sales Order Renewal. Upon the expiration of the Service Term, and unless otherwise agreed to by the Parties in the Sales Order, each Sales Order shall automatically renew for successive periods of one (1) year each (“Renewal Term(s)”), unless otherwise stated in these terms and conditions or prior 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. Effective at any time after the end of the Service Term and from time to time thereafter, Brightstar may, modify the charges for Ethernet, Internet and/or Video Services subject to thirty (30) days prior written notice to Customer. Customer will have thirty (30) days from receipt of such notice to cancel the applicable Service without further liability. Should Customer fail to cancel within this timeframe, Customer will be deemed to have accepted the modified Service pricing.
ARTICLE 5. TERMINATION WITHOUT FAULT; DEFAULT
- Termination for Convenience. Notwithstanding any other term or provision in this Agreement, Customer shall have the right, in its sole discretion, to terminate any or all Sales Order(s) at any time during the Service Term(s), upon thirty (30) days prior written notice to Brightstar and subject to payment to Brightstar of all outstanding amounts due for the Services, any and all applicable Termination Charges, and the return of all applicable Brightstar Equipment. Brightstar may terminate the Agreement if Customer does not take any Service under a Sales Order for twelve (12) consecutive months or longer.
- Termination for Cause. If either Party breaches any material term of the Agreement, other than a payment term, and the breach continues un-remedied for thirty (30) days after written notice of default, the other Party may terminate for cause any Sales Order materially affected by the breach. If Customer is in breach of a payment obligation (including failure to pay a required deposit) and fails to make payment in full within ten (10) days after receipt of written notice of default, Brightstar may, at its option, terminate the Agreement, terminate the affected Sales Orders, suspend Service under the affected Sales Orders, and/or require a deposit, advance payment, or other satisfactory assurances in connection with any or all Sales Orders as a condition of continuing to provide Service; except that Brightstar will not take any such action as a result of Customer’s non-payment of a charge subject to a timely billing dispute, unless Brightstar has reviewed the dispute and determined in good faith that the charge is correct. A Sales Order may be terminated by either Party immediately upon written notice if the other Party has become insolvent or involved in liquidation or termination of its business, or adjudicated bankrupt, or been involved in an assignment for the benefit of its creditors. Termination by either Party of a Sales Order does not waive any other rights or remedies that it may have under this Agreement. The non-defaulting Party shall be entitled to all available legal and equitable remedies for such breach.
- Effect of Expiration/Termination of a Sales Order. – Upon the expiration or termination of a Sales Order for any reason:
- Brightstar shall disconnect the applicable Service;
- Brightstar may delete all applicable data, files, electronic messages, or other information stored on Brightstar’s servers or systems;
- If Customer has terminated the Sales Order prior to the expiration of the Service Term for convenience, or if Brightstar has terminated the Sales Order prior to the expiration of the Service Term as a result of material breach by Customer, Brightstar may assess and collect from Customer applicable Termination Charges (if any);
- Customer shall, permit Brightstar to retrieve from the applicable Service Location any and all Brightstar Equipment. If Customer fails to permit such retrieval or if the retrieved Brightstar Equipment has been damaged and/or destroyed other than by Brightstar or its agents, normal wear and tear excepted, Brightstar may invoice Customer for the manufacturer’s list price of the relevant Brightstar Equipment, or in the event of minor damage to the retrieved Brightstar Equipment, the cost of repair, which amounts shall be immediately due and payable; and
- Customer’s right to use applicable Licensed Software shall automatically terminate, and Customer shall be obligated to return all Licensed Software to Brightstar.
- Resumption of Service. If a Service has been discontinued by Brightstar for cause and Customer requests that the Service be restored, Brightstar shall have the sole and absolute discretion to restore such Service. At Brightstar’s option, deposits, advanced payments, nonrecurring charges, and/or an extended Service Term may apply to restoration of Service.
- Regulatory and Legal Changes. The Parties acknowledge that the respective rights and obligations of each Party as set forth in this Agreement upon its execution are based on applicable law and regulations as they exist on the date of execution of this Agreement. The Parties agree that in the event of any subsequent decision by a legislative, regulatory or judicial body, including any regulatory or judicial order, rule, regulation, decision in any arbitration or other dispute resolution or other legal or regulatory action that materially affects the provisions or ability to provide Services on economic terms of the Agreement, Brightstar 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 can’t reach resolution on new Agreement terms, Brightstar may, in its sole discretion, terminate this Agreement, in whole or in part, upon sixty (60) days written notice to Customer.
ARTICLE 6. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES; WARNINGS
- Limitation of Liability.
- THE AGGREGATE LIABILITY OF BRIGHTSTAR FOR ANY AND ALL LOSSES, DAMAGES AND CAUSES ARISING OUT OF THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE PERFORMANCE OF SERVICE, AND NOT OTHERWISE LIMITED HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED DIRECT DAMAGES EQUAL TO THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER TO BRIGHTSTAR DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT FOR WHICH DAMAGES ARE CLAIMED. THIS LIMITATION SHALL NOT APPLY TO BRIGHTSTAR’S INDEMNIFICATION OBLIGATIONS AND CLAIMS FOR DAMAGE TO PROPERTY AND/OR PERSONAL INJURIES (INCLUDING DEATH) ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF BRIGHTSTAR WHILE ON THE CUSTOMER SERVICE LOCATION.
- NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, COVER, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORTHOWEVER, THAT NOTHING HEREIN IS INTENDED TO LIMIT CUSTOMER’S LIABILITY FOR AMOUNTS OWED FOR THE SERVICES, FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY BRIGHTSTAR OR FOR TERMINATION CHARGES.
- Disclaimer of Warranties.
- Services shall be provided pursuant to the terms and conditions in the applicable PSA and Service Level Agreement, and are in lieu of all other warranties, express, implied or statutory, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. TO THE MAXIMUM EXTENT ALLOWED BY LAW, BRIGHTSTAR EXPRESSLY DISCLAIMS ALL SUCH EXPRESS, IMPLIED AND STATUTORY WARRANTIES.
- Without limiting the generality of the foregoing, and except as otherwise identified in a PSA or Service Level Agreement, Brightstar does not warrant that the Services, Brightstar Equipment, or Licensed Software will be uninterrupted, error-free, or free of latency or delay, or that the Services, Brightstar Equipment, or Licensed Software will meet customer’s requirements, or that the Services, Brightstar Equipment, or Licensed Software will prevent unauthorized access by third parties.
- In no event shall Brightstar, be liable for any loss, damage or claim arising out of or related to: (i) stored, transmitted, or recorded data, files, or software; (ii) any act or omission of Customer, its users or third parties; (iii) interoperability, interaction or interconnection of the Services with applications, equipment, services or networks provided by Customer or third parties; or (iv) loss or destruction of any Customer hardware, software, files or data resulting from any virus or other harmful feature or from any attempt to remove it. Customer is advised to back up all data, files and software prior to the installation of Service and at regular intervals thereafter.
- Disruption of Service. Notwithstanding the performance standards identified in a PSA, 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 (“High Risk Activities”). These High Risk Activities may include, without limitation, vital business or personal communications, or activities where absolutely accurate data or information is required.
- Customer’s sole and exclusive remedies are expressly set forth in the Agreement. Certain of the above exclusions may not apply if the state in which a Service is provided does not allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion of incidental or consequential damages. In those states, the liability of Brightstar is limited to the maximum extent permitted by law.
ARTICLE 7. INDEMNIFICATION
- Brightstar’s Indemnification Obligations. Brightstar shall indemnify defend, and hold harmless Customer and its parent company, affiliates, employees, directors, officers, and agents from and against all claims, demands, actions, causes of actions, damages, liabilities, losses, and expenses (including reasonable attorneys’ fees) (“Claims”) incurred as a result of: infringement of U.S. patent or copyright relating to the Brightstar Equipment or Brightstar Licensed Software hereunder; damage to tangible personal property or real property, and personal injuries (including death) arising out of the gross negligence or willful misconduct of Brightstar while working on the Customer Service Location.
- Customer’s Indemnification Obligations. Customer shall indemnify, defend, and hold harmless Brightstar from any and all Claims arising on account of or in connection with Customer’s use or sharing of the Service provided under the Agreement, including with respect to: libel, slander, infringement of copyright, or unauthorized use of trademark, trade name, or service mark arising out of communications via the Service; for patent infringement arising from Customer’s combining or connection of CE to use the Service; for damage arising out of the gross negligence or willful misconduct of Customer with respect to users of the Service.
- Indemnification Procedures. The Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim or demand (“Actions”) that is the subject of this Article 7. The Indemnified Party agrees to notify the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying Party shall assume the defense of any Action with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ its own counsel in any such case, and shall pay such counsel’s fees and expenses. The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
ARTICLE 8. SOFTWARE & SERVICES
- License. If and to the extent that Customer requires the use of Licensed Software in order to use the Service supplied under any Sales Order, Customer shall have a personal, nonexclusive, nontransferable, and limited license to use such Licensed Software in object code only and solely to the extent necessary to use the applicable Service during the corresponding Service Term. All Licensed Software provided to Customer, and each revised version thereof, is licensed (not sold) to Customer by Brightstar only for use in conjunction with the Service. 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 Brightstar, including, without limitation, end-user license agreements for the Licensed Software. Brightstar and its suppliers shall retain ownership of the Licensed Software, and no rights are granted to Customer other than a license to use the Licensed Software under the terms expressly set forth in this Agreement.
- Restrictions. Customer agrees that it 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 Brightstar; (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.
- Updates. Customer acknowledges that the use of Service may periodically require updates and/or changes to certain Licensed Software resident in the Brightstar Equipment or CE. If Brightstar has agreed to provide updates and changes, such updates and changes may be performed remotely or on-site by Brightstar, at Brightstar’s sole option. Customer hereby consents to, and shall provide free access for, such updates deemed reasonably necessary by Brightstar. If Customer fails to agree to such updates, Brightstar will be excused from the applicable Service Level Agreement and other performance credits, and any and all liability and indemnification obligations regarding the applicable Service.
- 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. If requested by Brightstar, Customer also agrees to sign written assurances and other export-related documents as may be required for Brightstar to comply with U.S. export regulations.
- Ownership of Telephone Numbers and Addresses. Customer acknowledges that use of certain Services does not give it any ownership or other rights in any telephone number or Internet/on-line addresses provided, including but not limited to Internet Protocol (“IP”) addresses, e-mail addresses and web addresses.
- Intellectual Property Rights in the Services. Title and intellectual property rights to the Services are owned by Brightstar, 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 express prior written consent from Brightstar or other owner of such material, is prohibited.
ARTICLE 9. CONFIDENTIAL INFORMATION AND PRIVACY
- Disclosure and Use. All Confidential Information disclosed by either Party shall be kept by the receiving party in strict confidence and shall not be disclosed to any third party without the disclosing party’s express written consent. Notwithstanding the foregoing, such information may be disclosed (i) to the receiving party’s employees, affiliates, and agents who have a need to know for the purpose of performing this Agreement, using the Services, rendering the Services, and marketing related products and services (provided that in all cases the receiving party shall take appropriate measures prior to disclosure to its employees, affiliates, and agents to assure against unauthorized use or disclosure); or (ii) as otherwise authorized by this Agreement. Each Party agrees to treat all Confidential Information of the other in the same manner as it treats its own proprietary information, but in no case using a degree of care less than a reasonable degree of care.
- Exceptions. Notwithstanding the foregoing, each Party’s confidentiality obligations hereunder shall not apply to information that:(i) is already known to the receiving party without a pre-existing restriction as to disclosure; (ii) is or becomes publicly available without fault of the receiving party; (iii) is rightfully obtained by the receiving party from a third party without restriction as to disclosure, or is approved for release by written authorization of the disclosing party; (iv) is developed independently by the receiving party without use of the disclosing party’s Confidential Information; or (v) is required to be disclosed by law or regulation.
- Publicity. The Agreement provides no right to use any Party’s or its affiliates’ trademarks, service marks, or trade names, or to otherwise refer to the other Party in any marketing, promotional, or advertising materials or activities. 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 Brightstar and Customer, except as permitted by the Agreement or otherwise consented to in writing by the other Party.
- Passwords. Brightstar may furnish Customer with user identifications and passwords for use in conjunction with certain Services, including, without limitation, for access to certain non-public Brightstar website materials. Customer understands and agrees that such information shall be subject to Brightstar’s access policies and procedures located on Brightstar’s Web Site.
- Remedies. Notwithstanding any other Article of this Agreement, the non-breaching Party shall be entitled to seek equitable relief to protect its interests pursuant to this Article 9, including, but not limited to, injunctive relief.
- Monitoring of Services. Except as otherwise expressly set forth in a PSA, Brightstar assumes no obligation to pre-screen or monitor Customer’s use of the Service, including without limitation postings and/or transmission. However, Customer acknowledges and agrees that Brightstar and its agents shall have the right to pre-screen and monitor such use from time to time and to use and disclose such results to the extent necessary to operate the Service properly, to ensure compliance with applicable use policies, to protect the rights and/or property of Brightstar, or in emergencies when physical safety is at issue, and that Brightstar may disclose the same to the extent necessary to satisfy any law, regulation, or governmental request. Brightstar shall have no liability or responsibility for content received or distributed by Customer or its users through the Service, and Customer shall indemnify, defend, and hold Brightstar and its directors, officers, employees, agents, subsidiaries, affiliates, successors, and assigns harmless from any and all claims, damages, and expenses whatsoever (including reasonable attorneys’ fees) arising from such content attributable to Customer or its users. For the avoidance of doubt, the monitoring of data described in this Section 9.6 refers to aggregate data and types of traffic (protocol, upstream/downstream utilization, etc.). Brightstar does not have access to the content of encrypted data transmitted across Brightstar networks.
- Survival of Confidentiality Obligations. The obligations of confidentiality and limitation of use described in this Article 9 shall survive the expiration and termination of the Agreement for a period of two (2) years (or such longer period as may be required by law).
ARTICLE 10. Use of Service; Use and Privacy POLICIES
- Prohibited Uses and BrightstarUse Policies. Customer is prohibited from using, or permitting the use of, any Service (i) for any purpose in violation of any law, rule, regulation, or policy of any government authority; (ii) in violation of any Use Policy (as defined below); (iii) for any use as to which Customer has not obtained all required government approvals, authorizations, licenses, consents, and permits; or (iv) to interfere unreasonably with the use of Brightstar service by others or the operation of the Network. Customer is responsible for assuring that any and all of its users comply with the provisions of the Agreement. Brightstar reserves the right to act immediately and without notice to terminate or suspend the Services and/or to remove from the Services any information transmitted by or to Customer or users, if Brightstar determines that such use is prohibited as identified herein, or information does not conform with the requirements set or Brightstar reasonably believes that such use or information may violate any laws, regulations, or written and electronic instructions for use. Furthermore, to the extent applicable, Services shall be subject to Brightstar’s acceptable use policies (“Use Policies”) that may limit use. The Use Policies and other security policies concerning the Services are posted on the Website, and are incorporated into this Agreement by reference. Brightstar may update the Use Policies from time to time, and such updates shall be deemed effective immediately upon posting, with or without actual notice to Customer. Brightstar’s action or inaction in enforcing acceptable use shall not constitute review or approval of Customer’s or any other users’ use or information.
- Privacy Note Regarding Information Provided to Third Parties. Brightstar is not responsible for any information provided by Customer to third parties. Such information is not subject to the privacy provisions of this Agreement. Customer assumes all privacy and other risks associated with providing personally identifiable information to third parties via the Services.
- Violation. Any breach of this Article 10 shall be deemed a material breach of this Agreement. In the event of such material breach, Brightstar shall have the right to restrict, suspend, or terminate immediately any or all Sales Orders, without liability on the part of Brightstar, and then to notify Customer of the action that Brightstar has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement.
ARTICLE 11. MISCELLANEOUS TERMS
- Force Majeure. Neither Party (and in the case of Brightstar, Brightstar affiliates and subsidiaries) shall be liable to the other Party for any delay, failure in performance, loss, or damage to the extent caused by force majeure conditions such as acts of God, fire, explosion, power blackout, cable cut, acts of regulatory or governmental agencies, unavailability of right-of-way or materials, or other causes beyond the Party’s reasonable control, except that Customer’s obligation to pay for Services provided under the Agreement shall not be excused. Changes in economic, business or competitive condition shall not be considered force majeure events.
- Assignment or Transfer. Customer shall not assign any right, obligation or duty, in whole or in part, nor of any other interest hereunder, without the prior written consent of Brightstar, which shall not be unreasonably withheld. All obligations and duties of either Party under this Agreement shall be binding on all successors in interest and assigns of such Party. Nothing herein is intended to limit Brightstar’s use of third-party consultants and contractors to perform Services under a Sales Order.
- Notices. Any notice sent pursuant to the Agreement shall be deemed given and effective when sent by facsimile (confirmed by first-class mail), or when delivered by overnight express or other express delivery service, in each case as follows: (i) with respect to Customer, to the address set forth on any Sales Order; or (ii) with respect to Brightstar, to: Vice President/Sales, 1350 Beverly Road, Suite 115-257, McLean, VA 22101. Each Party shall notify the other Party in writing of any changes in its address listed on any Sales Order.
- Entire Understanding. The Agreement, together with any applicable Tariffs, constitutes the entire understanding of the Parties related to the subject matter hereof. The Agreement supersedes all prior agreements, proposals, representations, statements, or understandings, whether written or oral, concerning the Services or the Parties’ rights or obligations relating to Services. Any prior representations, promises, inducements, or statements of intent regarding the Services that are not embodied in the Agreement are of no effect. No subsequent agreement among the Parties concerning Service shall be effective or binding unless it is made in writing by authorized representatives of the Parties. Terms or conditions contained in any Sales Order, or restrictive endorsements or other statements on any form of payment, shall be void and of no force or effect.
- Tariffs. Notwithstanding anything to the contrary in the Agreement, Brightstar may elect or 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 with respect to rates, the rates and other terms set forth in the applicable Sales Order shall be treated as individual case based arrangements to the maximum extent permitted by law, and Brightstar shall take such steps as are required by law to make the rates and other terms enforceable. If Brightstar 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 Brightstar 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 either Party, the affected Party may terminate the applicable Sales Order upon a minimum thirty (30) days’ prior written notice to the other Party, without further liability
- Construction. In the event that any portion of the Agreement is held to be invalid or unenforceable, the Parties shall replace the invalid or unenforceable portion with another 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.
- Survival. The rights and obligations of either Party that by their nature would continue beyond the termination or expiration of a Sales Order shall survive termination or expiration of the Sales Order.
- Choice of Law. The domestic law of the state in which the Service is provided shall govern the construction, interpretation, and performance of this Agreement, except to the extent superseded by federal law.
- No Third Party Beneficiaries. This Agreement does not expressly or implicitly provide any third party (including users) with any remedy, claim, liability, reimbursement, cause of action, or other right or privilege.
- Parties’ Authority to Contract. The persons whose signatures appear below are duly authorized to enter into the Agreement on behalf of the Parties name therein.
- No Waiver; Etc. No failure by either Party to enforce any right(s) hereunder shall constitute a waiver of such right(s). This Agreement may be executed in counterpart copies.
- Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for, or on behalf of, orincur 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.
- Article Headings. The article headings used herein are for reference only and shall not limit or control any term or provision of this Agreement or the interpretation or construction thereof.
- Compliance with Laws. Each of the Parties agrees to comply with all applicable local, state and federal laws and regulations and ordinances in the performance of its respective obligations under this Agreement.