General Terms & Conditions 

BY ACCEPTING THESE TERMS AND CONDITIONS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS BELOW AND ON SUBSEQUENT PAGES. ALL SERVICE ORDERS AND SERVICES ARE SUBJECT TO THESE TERMS AND CONDITIONS. 

 These Terms and Conditions (the “Agreement”) are entered into by and between MGW NETWORKS, LLC dba Lingo Networks LLC (“Provider”), a Virginia limited liability company, and the customer purchasing products or services from Provider (“Customer”). 

1. Definitions.  

The following terms will have the meanings set forth below. 

1.1 “Customer Data” means any data, information or other materials of any nature whatsoever provided to Provider by Customer or a User in the course of implementing or using the Services. 

1.2 “Service Descriptions” means user manuals and other documentation relating to the Services that are made available to Customer by Provider in digital or hardcopy form, as updated from time to time. 

1.3 “Service Fee” or “Service Fees” means the monthly or annual fees set forth in the Service Order to be paid by Customer to Provider as consideration for Provider’s provision to Customer of the Services, but does not include usage fees, taxes or regulatory fees or surcharges, which Customer must pay in addition to the Service Fees. 

1.4 “Service Order” means an order for Services or products. 

1.5 “Service Plan” means the monthly or annual subscription plan a Customer agrees to in the Service Order. 

1.6 “Service Order Addendum” means a Service Order agreed to by Customer subsequent to the initial Service Order. 

1.7 “Services” means the products or services that are being provided to Customer as described in the Service Order, including any Additional Services set forth in a Service Order Addendum accepted by Provider. 

1.8 “Software” means any proprietary software owned by, licensed by or which Provider has a right to sublicense that is used in or used to provide the Services. “Software” includes, without limitation, any application that Provider makes available to the Customer for use on devices. 

1.9 “User” means a user of the software, client, mobile/software application or other web-based application, equipment, feature or functionality provided by Provider in conjunction with the Services. 

2. Services. 

2.1 General. Provider will provide the Services set forth in an accepted Service Order subject to the terms and conditions of this Agreement. Provider hereby grants Customer limited, revocable, non-exclusive, non-transferable access to the Services for use by the number of Users set forth in the Service Order, for Customer’s own internal purposes. Provider grants Customer a limited, revocable, non-exclusive, non-transferable right to use the Services Descriptions in connection with its use of the Services. Each Service Order will be subject to Provider’s acceptance, which will be deemed given if Provider thereafter provides the Services to Customer. 

2.2 Conditions. Customer agrees that Provider’s obligations to provide the Services are expressly conditioned upon (a) Customer’s payment of the fees as and when due, and (b) Customer’s satisfaction of the technical requirements set forth in the Services Descriptions for the Services made available to Customer by Provider, as the same may be updated by Provider from time to time. The service provider reserves the right to amend these terms and conditions at any time. 

2.3 Additional Services. Customer may request an increase in or additional Services at any time during the Term (any such increase, “Additional Services”) by submitting a Service Order Addendum setting forth the specific Additional Services desired. Each Service Order Addendum will be subject to Provider’s acceptance, which will be deemed given if Provider thereafter provides the Additional Services to Customer. Upon acceptance by Provider, such Service Order Addendum will be deemed an amendment to the Agreement, subject to all of the terms and conditions herein, and the Service Fees will be increased to reflect the Additional Services, subject to the same pricing and payment terms as are set forth in the Service Order or the Service Order Addendum as applicable. 

3. Term.

This Agreement will commence on the date Provider delivers the service for the last location and will continue for the period of time specified in the Agreement (the “Initial Term”). At the end of the Initial Term, the Agreement will auto renew for an additional 30-day period (a “Renewal Term”), unless either party provides the other party, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, written or verbal confirmation may be required at the providers discretion. The Initial Term and any Renewal Terms are collectively referred to as the “Term”. 

4. Termination. 

4.1 Early Termination by Customer. (a) If Customer terminates the Agreement, or some of the Services provided under the Agreement, before the end of the Initial Term or any Renewal Term (the “Terminated Term”), Provider will charge Customer, and Customer will pay, an early termination charge equal to 100% of the monthly Service Fee for the terminated Services, multiplied by the number of months remaining in the Terminated Term on the date of termination. The early termination charge is in addition to the full monthly Service Fee payable for the month of, and months prior to, termination. Provider will also charge Customer, and Customer will pay, (a) any unpaid recurring or non-recurring charges waived by Provider at the beginning of or during the Terminated Term, and (b) the difference between the MSRP and the price paid by Customer for any equipment purchased at the beginning of or during the Terminated Term. If Customer or its User transfers service to a different service provider other than the Provider, Customer must also contact Provider to terminate the Services provided to Customer by Provider. 

(b) If Customer terminates the Agreement, including some (or all) of the Services provided under the Agreement, Customer may be required to complete a termination/disconnect form. This form outlines any additional fees that the Customer has remaining and lists the cost if equipment is not returned.  

4.2 Termination by Provider. (a) Provider is entitled, at its sole discretion, to suspend, terminate or change the Services without advance notice upon any misuse of the Services in any way, Customer’s breach of the Agreement, Customer’s failure to pay any sum due hereunder, suspected fraud or other activity by Customer or a User that adversely affects the Services, Provider, Provider’s network or another customer’s use of the Services. Provider will be entitled to determine, at its sole discretion, what constitutes misuse of the Services, and Customer agrees that Provider’s determination is final and binding on Customer. Provider may require, and if required, Customer will pay, a fee as a condition to changing or resuming a terminated or suspended account. 

(b) Provider is entitled to terminate any affected portion of the Services if: (i) Provider is prohibited by law from providing such portion of the Services; or (ii) any material rate or term contained herein and relevant to the affected Services is substantially changed by or as a result of any regulation or order issued by any court of competent jurisdiction, the Federal Communications Commission (FCC), any other local, state or federal government authority, or any carrier or Internet service provider. 

(c) Upon termination of this Agreement under this Section 4.2, Customer will be responsible for the full monthly Service Fee for the month in which termination occurs, in addition to any accrued but unpaid usage and other charges. 

5. Fees, Billing, and Taxes. 

5.1 Payment of Service Fees. Customer will pay the Service Fees for Services ordered by Customer, and all other amounts due under the Agreement, pursuant to the terms of this Section (5). 

5.2 Credit. The provision of Services is contingent upon establishment of and continuing credit approval by Provider. Customer hereby consents to Provider’s procurement of a credit score or report regarding Customer. At any time during the Term, Provider is entitled to require a deposit or other acceptable form of security from Customer, as it deems appropriate. Provider may, immediately and without notice, suspend or terminate the Services if Customer fails to comply with these security obligations. Upon a payment default by Customer not cured in a timely manner, Provider will have the right to offset against any security or deposit held any amounts owed to Provider by Customer, and to invoice and collect all other amounts owed. 

5.3 Billing. Provider will provide Customer with a monthly billing statement for the Services provided each calendar month and bill all charges invoiced to Customer’s account. Such charges will include monthly service fees, storage charges, activation charges, equipment charges, toll charges, shipping charges, taxes, regulatory recovery fees and any other applicable charges. Monthly Service Fees will be paid in advance of each month’s service; any variable charges associated with usage and any other applicable charges associated with such usage shall be billed in arrears. Billing for monthly Service Fees commences upon installation of the Services, and monthly Services Fees will be billed pro rata in the months in which such Services commence. Customer agrees to provide Provider with complete and accurate contact and payment information, which may include Customer’s credit card/bank account information, and Customer agrees to advise Provider of any changes thereto. To the extent Customer’s payment method is by credit card/bank ACH, Customer authorizes Provider to charge Customer’s credit card/bank account automatically to pay for Customer’s charges. If a charge to a Customer is declined or reversed, or if the bank account or credit card has expired or been suspended or closed, or if Customer fails to provide Provider with accurate or complete information, Provider may suspend or terminate the Services. 

The customer agrees, in order for the service provider to service the customer’s account or to collect any amounts the customer may owe, the service provider, the service provider’s agents, assignees, and/or third party(s) may contact the customer by telephone at any telephone number associated with the customer’s account, including wireless telephone numbers, which could result in charges to customer. Methods of contact may include using pre-recorded/artificial voice messages, text messages, and/or use of an automatic dialing device, as applicable. The customer agrees that the service provider, the service provider’s agents, assignees, third party(s) or servicing agent(s), for training purposes or to evaluate the quality of service, may listen to and record phone conversations the customer has with the service provider and/or the service provider’s agents, assignees, third party(s) or servicing agent(s). 

5.4 Late/Non-payment. If any charges for the Services are due but unpaid for any reason, Provider may suspend or terminate the Services and all accrued charges will be immediately due, plus a late fee up to 5% per month (or the state maximum). A fee may also be charged to activate a suspended or terminated account. No suspension or termination of the Services or of this Agreement will relieve Customer from paying any amounts due hereunder. 

5.5 Taxes. All Service Fees and other charges are exclusive of any taxes, surcharges, public utility fees and regulatory fees (including, without limitation, Universal Service Fees and 911 taxes). Such taxes and fees will be billed by Provider and paid by Customer. Taxes and regulatory fees may increase during the Term, and Customer will pay such increased fees commencing with the next monthly bill. Should Customer claim an exemption of any taxes or regulatory fees, Customer must provide official documented and certified proof of such exemption. In no event will Provider be liable for any taxes due by Customer or its User, and Customer will defend, indemnify and hold harmless Provider if any claim for taxes or fees is made. If any amounts paid for the Services are refunded by Provider, applicable taxes and regulatory fees may not be refundable. 

5.6 Service Fee Changes. Provider may change the Service Fees, the types of Service Plans and any additional usage charges without advance notice. Provider will provide notice of such changes. Notwithstanding the foregoing, the Service Fees agreed upon in Customer’s Service Order will not be increased during the Initial Term. With respect to any Renewal Term, the Customer will be charged Provider’s then-current Service Fees in effect at the commencement of the Renewal Term. 

5.7 Availability. Customer acknowledges and agrees that the Services may not be available 100% of the time. Additionally, Services will not be available in the event of interruption in Customer’s internet or broadband service. Provider will not credit Customer for any interruptions in Service. 

5.8 Discounts. From time to time at its sole discretion, Provider may offer promotions or discounts. Any promotion or discount codes must be provided to Provider upon purchase of the Services. Customer will not be entitled to a subsequent credit for such promotions or discounts if not requested at the time of account creation or change of Service. Promotions and/or discounts may not be used cumulatively or be used for Services retroactively. 

5.9 Billing Disputes. Customer must dispute any charges for the Services in writing to lingo@mgwnetworks.com within sixty (60) days of the date of the charge by Provider, or Customer waives any objection and further recourse with regard to such charges. Notwithstanding the foregoing, Customer shall pay all undisputed charges in accordance with this Agreement. 

6. Privacy. 

The Services use the Lingo Network’s network, Internet, and third-party networks to transmit voice communications and data. Provider is not liable for the interception, use or disclosure of Customer’s or its User’s voice communications or data. Provider does not represent, warrant or covenant that the Services will maintain the privacy or security of Customer’s or its Users’ voice communications or data. Customer acknowledges and agrees that none of its Customer Data is considered “Customer Proprietary Network Information” under the rules of the Federal Communications Commission. Customer agrees that Provider is entitled to monitor Customer’s and Users’ use of the Services to protect, maintain, or improve the Services; to prevent fraud or misrepresentation by affirmative acts and/or omissions; to protect Provider, its customers or other third parties affiliated with Provider; or for any other good cause. If required by law, Customer will inform its Users that Provider may monitor the Users’ communications and store and use the Users’ personally identifiable information as necessary to provide the Services. For Provider’s Privacy Policy, please visit http://www.lingonetworks.net. 
 

7. License; Prohibited Uses; Customer Responsibilities; Limitations.  

7.1 Customer hereby grants to Provider a license to copy, store, record, transmit, display, view, print and use Customer Data, solely to the extent necessary to provide the Services to Customer. Except as expressly provided in this Section 7, Customer grants to Provider no right, title, interest, or license in the Customer Data. Customer represents and warrants that it has all necessary consents and rights to provide personally identifiable information about its Users to Provider, and Customer will provide such information upon reasonable request by Provider. 

7.2 Customer represents and warrants that it will not use the Services for any illegal, fraudulent, improper, or abusive purpose or in any way that interferes with Provider’s ability to provide high-quality Services to other customers, prevents or restricts other customers from using the Services, or damages any of Provider’s or other customers’ property. If Provider discovers use of the Services for anything other than the permitted uses in this Agreement or for any of the prohibited uses in this Agreement, Provider may at its sole discretion terminate or suspend all or part of Customer’s Services and charge any applicable fees for the Services used plus damages caused by such improper use. Prohibited uses include, but are not limited to: (a) behavior that is illegal, obscene, threatening, harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing, tortious or invasive of another’s privacy; (b) sending unsolicited messages or advertisements, including e-mail, voice-mail, text messages or faxes (commercial or otherwise) (“spamming”), or otherwise sending bulk or junk e-mail, voice-mail, text messages or faxes; (c) harvesting or otherwise collecting information about others, including e-mail addresses, without their consent; (d) negligently, recklessly, knowingly or intentionally transmitting any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware or any other programs that may be harmful or dangerous; (e) creating a false caller identity (“ID spoofing”) or forged e-mail/text message address or header, or otherwise attempting to mislead others as to the identity of the sender or the origin of any communication made using the Services; (f) transmitting any material that may infringe, misappropriate, or otherwise violate the foreign or domestic intellectual property rights or other rights of third parties; (g) violating any U.S. or foreign law regarding the transmission of technical data or software exported through the Services; (h) using the Services in excess of what, in Provider’s sole discretion, would be expected of normal business or residential use, including without limitation allowing more than one user to use a single VoIP line or using a single VoIP line in excess of what would be expected of a single user; (i) using the Services in any way that interferes with other customers’ and third parties’ use and enjoyment of the Services; (j) using or employing methods and/or devices that are designed or likely to take advantage of, bypass, exploit or otherwise avoid this use policy. 

7.3 Customer understands and agrees that: (a) it will be solely liable for any transmissions sent through the Services under its account or its User’s account, including the content of any transmission sent through the Services under its account or its User’s account; (b) it will abide by all applicable Provider policies, procedures and agreements related to the Services; and (c) it will not attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services through password mining or any other means. 

7.4 Some of Provider’s plans and other Services are offered on an “unlimited” basis. All unlimited plans: (a) may only be used for normal reasonable use as defined by the company; (b) are not outside of the scope of original intents for services (i.e. Residential service being used for commercial activities.) In addition, unusually high usage of the Services may impair Provider’s ability to provide high-quality Services to others and/or indicate unauthorized use of the Services, in which case Provider may suspend or terminate Customer’s account or, upon prior notice, convert Customer’s account to a metered plan that charges higher usage rates. 

7.5 Customer must report any unauthorized use of the Services to Provider immediately after Customer discovers such use. Customer is responsible for all use of the Services, whether authorized or unauthorized. Customer will be responsible if any of its Users use the Services in a manner prohibited by this Agreement. Customer will be responsible for any act or omission of a User that would be a breach of this Agreement if done by Customer. 

7.6 Customer acknowledges and agrees that the right to use any Services is nonexclusive and nontransferable, and Customer will not permit use of the Services other than for its internal business or residential purposes. Nothing in this Agreement will pass to Customer or any User title to any of the Services, any trade names, trade dress, trademarks, service marks, commercial symbols, copyrightable material, designs, logos and/or any other intellectual property of Provider or its vendors. Customer will not challenge or attempt to register or otherwise protect any of Provider’s intellectual property or other rights in the Services. 

7.7 Customer will not: (a) copy or adapt the Services for any purpose, except as specifically permitted under this Agreement; (b) use the Services except in accordance with all applicable laws and regulations, and except as set forth in this Agreement; (c) reverse engineer, translate, decompile, or disassemble the Services; (d) use the Services in any outsourcing, application service provider, time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party other than a User; (e) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Services; or (f) delete, alter, cover, or distort any copyright or other proprietary notices or trademarks with respect to the Services. 

7.8 Customer will execute such other documents, provide such other information, and affirmatively cooperate with Provider, all as may be reasonably required by Provider relevant to providing the Service(s). 

7.9 Customer is responsible for having an adequate power source for service equipment as well as the appropriate grounding for access equipment installation. If the installation technician determines that the power source is insufficient, the customer will be responsible for rectifying the power issue at the owner’s expense. Non-standard installations will be billed at the going hourly rate as determined by the service provider in addition to any equipment used. Customer shall be responsible for locating and marking all privately owned underground facilities which may be in the vicinity of the service providers proposed cable route. Provider will not be responsible for damage done to customer’s underground facilities if their location has not been marked. 

8. Use and Storage.

Provider reserves the right to establish or modify general practices and limits concerning use of the Services and Software, including, without limitation, the maximum number of days that content will be retained by the Service and the maximum disk space or bandwidth capacity that will be allotted on servers owned or operated by Provider on Customer’s behalf. Where practical, Provider will provide Customer with prior notice of such new or modified practices; provided, however, that Provider will have the absolute right to implement such new or modified practices without prior notice in its sole discretion and without liability of any kind. 

9. Electronic Recording.

Customer agrees that the Provider may record any and all phone conversations between the Customer and the Provider for training and legal purposes. These records are kept in a secure location for a period of time as determined by the Provider.  

10. Responsibility for Registration Information and Content of Customer Communications.

Customer is solely responsible for maintaining the confidentiality of Customer’s account login information (including, without limitation, its Users’ account login information) to use the Services. Customer is solely responsible for any and all activities that occur under Customer’s account, including, without limitation, fraudulent use of the account. Customer and its Users must comply with laws regarding online behavior, acceptable content and the transmission of equipment and information under applicable laws. Use of the Services is void where prohibited. Customer will immediately notify Provider of any unauthorized use of Customer’s account or any other breach of security related to Customer’s account, to the Provider. Customer agrees that Customer is solely responsible for the content of all visual, written or audible communications (“Content”) sent, displayed or uploaded by Customer or a User in using the Services. Although Provider is not responsible for any such communications, Provider may reject or remove any Content that violates a law or this Agreement. Customer or the User retains copyright and any other rights already held in Content that Customer or the User submits, posts or displays on or through, the Services, or any music or ring-tones Customer or a User uses in connection with the Service. Furthermore, Customer represents and warrants that it has all necessary consents and rights to transmit Content and other communications. 

11. Responsibility for Content of Others.

Customer acknowledges that Users on their network may violate one or more of the above prohibitions, but Provider assumes no responsibility or liability for such violation. If Customer becomes aware of misuse of the Services by any person, entity or organization, Customer agrees to contact Provider Customer Support at 877-745-4646 or lingo@mgwnetworks.com . Provider may investigate any complaints and violations that come to its attention and may take any action that it believes is appropriate, including, but not limited to, issuing warnings, removing the content or terminating accounts and/or User profiles. Under no circumstances will Provider be liable in any way for any data or other content available on a Site or actions taken while using the Services, including, but not limited to, any errors or omissions in any such data, content or activity or any loss or damage of any kind incurred as a result of the use of, access to or denial of access to any data, content or activities on a Site. Provider does not endorse and has no control over what Customers/Users post, submit to or do on a Site. Customer acknowledges that Provider cannot guarantee the accuracy of any information submitted by any User of a Site, nor any personally identifiable information about any Customer/User. Provider reserves the right, in its sole discretion, to reject, suspend, or remove content or accounts. 

12. Disclaimer and Limitation of Liability.

Provider disclaims all warranties, express, implied, statutory or arising from a course of dealing or performance or custom, with respect to the services, equipment, and any other provider products, services or equipment provided hereunder, including, but not limited to, warranties of merchantability, fitness for a particular purpose, performance in a workman-like manner, compliance with laws, quality, accuracy, completeness or currency of information, system integrity, title, quiet enjoyment and non-infringement. Provider does not represent, warrant or covenant that the products, services or equipment provided will operate uninterrupted, error free or without degradation or loss of data, or be secure. Neither provider nor its service providers will be liable for unauthorized access to or alteration, theft or destruction of customer’s or a user’s data files, programs, procedures or information, including, without limitation, any such data in provider’s possession, custody or control, through accident, fraudulent means or devices, or any other method, regardless of whether such damage occurs as a result of provider’s or its service provider’s negligence. In no event will provider or its affiliate, service provider, facility operator or carrier, or their respective owners, directors, managers, officers, employees or agents (collectively, “provider parties”) be liable for any direct, actual, indirect, consequential, special, punitive or other damages, or for any cost of cover or lost profits of any kind or nature whatsoever, arising from or related to this agreement or a provider party’s performance or nonperformance of obligations hereunder, a failure of or a defect in the services, equipment or any product, a provider party’s violation of a third party’s right, or a provider party’s acts or omissions. Provider will not be liable for the acts or omissions of, a failure of or a defect in any product or service provided by, or violation of any third party’s rights by any third-party service provider, facility operator or carrier. The provider parties’ maximum total liability to customer will not exceed the amounts paid by customer to provider in the three (3) months preceding the date the claim accrued. The provider parties will not be liable in any way to any user. 

13. Indemnification. Customer will defend the Provider Parties, at Customer’s expense, against any third-party claim or action, and indemnify and hold harmless the Provider Parties from any and all losses, damages, liabilities, penalties, settlement obligations, costs, attorneys’ fees and other legal expenses related to such third-party claim or action, arising from or related to: (a) Customer’s breach of this Agreement or an agreement between Customer and a third party; (b) Customer’s violation, infringement or misappropriation of the third party’s intellectual property or other rights in Customer’s use of the Services; (c) Customer’s violation of the third party’s privacy, publicity, personality or other rights; (d) Customer’s fraud in use of the Services or fraud or misrepresentation regarding the nature or volume of Customer’s traffic; (e) Customer’s violation of an applicable law; (f) bodily injury, death or property damage to the extent such claim or action arises from the negligence, gross negligence or willful misconduct of Customer, or in the case where strict liability applies; (g) Customer’s residence or business, acts or omissions; or (h) acts or omissions by Users that, if done by Customer, would constitute a breach of this Agreement. Customer will not settle any claim or action without Provider’s prior written consent. Provider will have the option, at its expense, to participate in the defense or settlement of the claim or action with counsel of its own choosing. If a conflict of interests arises or exists between the parties or if Provider has a good faith belief that its rights are being harmed by the counsel selected by Customer, Provider will have the right to retain separate counsel to represent its interests at Customer’s sole cost and expense. Customer will not settle any claim without Provider’s prior written consent. 

14. Equipment. 

14.1 Equipment Purchase. If Provider sells any equipment to Customer, the terms of this Section apply. Customer shall be wholly responsible for insuring any products purchased from the time risk of loss or damage passes to Customer. Provider will pass through to Customer any warranty provided by the manufacturer of the equipment; PROVIDER MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY EQUIPMENT. 

14.2 Equipment Lease. If Provider leases any equipment to Customer, the terms of this Section apply. Customer shall be wholly responsible for insuring any products that are leased, the risk of loss or damage passes to Customer. Provider will honor to Customer any warranty provided by the manufacturer first before replacing any damage or defective equipment. In the event of damaged equipment, if the damage to the equipment is found to be caused my negligible actions or environmental situations including but not limited to acts of God, loss, fire, flood, and theft, the Customer will be billed for the cost of replacement equipment and the necessary man hours to restore equipment to previous working conditions. If the equipment is no longer manufactured, Provider will seek an alternative equipment option. In the event that a like equipment replacement is not possible due to legacy equipment, Provider bears no responsibility for continuing to provide services. 

14.3 Equipment Return Policy. Customer will be required to obtain authorization from Provider to return any equipment. Equipment returned by Customer that is not covered under warranty or that does not bear a return authorization number may be refused. Customer must pay all shipping and handling charges related to any equipment returns not covered under warranty. All returned equipment must be unmodified, in good working condition, in the original packaging and include all components, manuals, peripheral devices and all other accessories that were originally shipped with the equipment. Provider may decline Customer’s return or charge Customer an additional fee for each missing item or for each item that Provider reasonably determines is modified, damaged or not in good working condition.  

15. Software Application.

Provider may make a software application for the Services available to Customer. Subject to this Agreement, Provider grants to Customer a limited, personal, revocable, non-exclusive, non-transferable and non-sublicensable license to install and use the application during the Term. Customer has no other rights in or to the application. The application is licensed, not sold. The terms of this Agreement apply to any updated, upgraded or new versions of the application. Use of the application constitutes use of the Services. Provider may require Users to agree to additional terms and conditions governing use of the application, and Customer agrees they will not be permitted to use the application unless they agree to such terms and conditions. Customer agrees that from time to time and without notice Provider may amend, modify, update or upgrade the application or create new versions of the application. Customer agrees that Provider may automatically update the version of the application that is being used. Customer consents, on behalf of itself and its other Users, to such updating. Updates may cause Customer or a User to lose data, and Provider will not be liable for such loss. Customer agrees that Provider has no obligation to provide support, maintenance or updates for or to the application. To the extent the application contains any third-party software, Customer’s and User’s rights and obligations with respect to such software will be subject to and governed by the third party’s terms and conditions. Provider does not make a representation or warranty that the application will operate on any particular device or operating system. 

16. Intellectual Property.

The Services and Software, and all intellectual property therein, are and will remain the exclusive property of Provider. Provider reserves all rights not expressly granted under this Agreement. The Software may contain third-party software that is subject to the terms and conditions of third-party licenses. Neither Customer, Users nor any other third party has a right to inspect, possess, use, copy, or attempt to discover the source code of (or any portion of) the Software, except to the extent that Customer, a User or a third party is expressly permitted to decompile the Software under applicable law and Customer, the User or the third party notifies Provider in writing in advance of its intention to decompile the Software and its reason for doing so. 

17. Miscellaneous. 

17.1 Notices. Unless otherwise specified in this Agreement, any notice required or permitted to be given pursuant to this Agreement will be given in writing by delivery service, sent via mail (certified or regular), e-mailed, or delivered by hand, and such notice will be deemed to have been given and received when delivered or when delivery was refused, or with respect to electronic transmissions, at the time of transmission (unless the sender received a notice of transmission failure). Customer consents to receive all notices in electronic or paper form, and Provider may send any notice to Customer at Customer’s latest physical address or e-mail address provided by Customer. Provider may, in addition to all other methods of giving notice, send any notice to Customer’s mailbox in Customer’s account on the applications provided by the Provider. Both parties agree that any agreements and notices made or provided by one or both parties in electronic form, and in accordance with this Agreement, are as legally binding as if made in physical written form.  

17.2 Force Majeure. Provider’s performance of any part of this Agreement will be excused to the extent that it is hindered by flood, fire, natural disaster, strike, riot, war, terrorism, hostile attack, governmental action, cable cuts, supplier shortages, breaches, or delays, Provider’s inability to perform as a result of actions or inactions of third parties, Customer, a User or Provider’s vendors, including, without limitation, or any other cause (whether similar or dissimilar to those listed) beyond Provider’s reasonable control (a “Force Majeure”). Provider may terminate the Services without liability if a Force Majeure hinders Provider’s performance. 

17.3 No Class Action. Customer irrevocably waives any right Customer may have to serve as a representative or as a private attorney general, or to participate as a member of a class of claimants, in any lawsuit, arbitration or other proceeding against any Provider Party arising from, related to or connected with this Agreement or any Service Order. 

17.4 Binding Nature and Assignment. Customer’s rights and obligations in this Agreement will not be assigned, delegated or otherwise transferred in whole or in part without the prior written consent of Provider. Except as part of the sale of all or substantially of the assets for Provider or the assignment of this Agreement, or any rights or obligations thereunder, to any of Provider’s affiliates (which will not require Customer consent), Provider’s rights and obligations in this Agreement will not be assigned, delegated or otherwise transferred in whole or in part without the prior written consent of Customer, which will not be unreasonably withheld. For sake of clarity, Provider may assign, delegate and transfer some or all of its rights and obligations under this Agreement to its affiliates. Except as otherwise expressly provided herein, this Agreement will inure to the benefit of, and will bind, the heirs, executors, personal representatives, administrators, successors and permitted assigns of Provider and Customer. 

17.5 Governing Law. This Agreement and any related Service Orders will be governed by and construed according to the laws of the State of Virginia, without regard to its conflict of law’s provisions. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. 

17.6 Arbitration. Any dispute or controversy arising out of or in connection with this Agreement or any related Service Order, or otherwise related to the Services, will be resolved by binding arbitration. The Federal Arbitration Act and federal arbitration law applies to this Agreement. The arbitration, at the Providers discretion, will be administered by the American Arbitration Association (AAA), conducted by one (1) arbitrator, and conducted in accordance with the AAA’s Arbitration Rules. The arbitration will be conducted in Staunton, Virginia. The language of the arbitration will be English. The parties’ briefs and other documents and the arbitrator’s findings and decision will be confidential unless required to be disclosed by law. Neither party may use any finding or decision of the arbitrator in existing or subsequent litigation or arbitration involving any other person, entity or organization. The arbitrator must have sufficient experience in the matter(s) at issue. The arbitrator’s decision will follow the plain meaning of the Agreement and will be final and binding. Neither party will have the right to appeal an error of law or fact. Each party will bear the cost of preparing and presenting its case. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to Services or products provided or billed to Customer if claims are asserted against Provider in the same proceeding. Notwithstanding the foregoing, either party may bring suit in court to enjoin unauthorized access or trespass to its computer networks or any misappropriation, infringement or violation of its intellectual property rights. The arbitrator will have the exclusive power to rule on the formation, interpretation, applicability, validity or enforceability of this Agreement, including without limitation the validity or enforceability of this arbitration agreement. The arbitrator will not have the power to conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. If any dispute or controversy arising out of or in connection with this Agreement or any related Service Order, or otherwise related to the Services, cannot lawfully be resolved by arbitration, the complainant must bring any claim or action in the state or federal courts for Staunton, Virginia, and the parties waive any objection based on personal jurisdiction, venue or inconvenient forum. 

17.7 Entire Agreement, Amendments, Conflict, Severability, Waiver, Survival. This Agreement, all documents referred to herein and any related Service Order executed by the parties constitute the entire agreement between the parties and supersede any and all prior agreements and rates between the parties with respect to the subject matter hereof. No additions, deletions or modifications to this Agreement or any Service Order will be binding unless (a) made in a writing signed by duly authorized representatives of both parties or (b) agreed to by the party to be charged by electronic means. In the event of a conflict between any of the terms and conditions of this Agreement and any Service Order, the terms and conditions in the Service Order will prevail. The parties are independent contractors. Nothing contained herein will be construed as creating any agency, partnership, or other form of joint venture or enterprise between the parties. If any provision(s) of this Agreement or any related Service Order is held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby, and the parties further agree to substitute a valid provision that most closely approximates the economic effect of the invalid provision. The failure of either party to require performance by the other party of any provision hereof will not affect the right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision hereof be taken to be a waiver of the provision itself. To the extent permitted by applicable law, the parties agree to and do hereby waive any applicable statutory or common law that may permit a court to construe a contract against its drafter. No claim or cause of action may be asserted against either party more than three (3) months after the time the facts giving rise to the claim or cause of action are discovered or should have been discovered. In the event a suit is brought or an attorney or collection agency is retained by Provider to enforce the terms of this Agreement or any Service Order, or to collect any monies due hereunder, or to collect money damages for breach thereof, Provider will be entitled to recover, in addition to any other remedy available at law or in equity, reimbursement for attorneys’ fees, court costs, collection costs, costs of investigation and other related expenses incurred in connection therewith. The terms and provisions contained in this Agreement and any related Service Order that, by their sense and context, are intended to survive the performance thereof by the parties hereto will survive the completion of performance and termination of this Agreement, including, without limitation, payment obligations, the limitations on damages and liability, ownership of intellectual property, and defense and indemnity obligations.