Black Box Network Services General Terms and Conditions (“General Terms”) applicable to furnishing of Hosted Unified Communications Services (GENBAND, Cisco and Aspect Hosted Solutions) within the U.S. operating territory of Black Box Corporation and its U.S. subsidiaries Rev. 2 (Effective July 17, 2017)
The hosted unified communications services in the applicable Customer order will only be offered to the Customer in the United States by Norstan Communications, Inc. d/b/a Black Box Network Services or the applicable direct or indirect
U.S. operating subsidiary of Black Box Corporation providing the hosted unified communications services in such State (as applicable, herein collectively referred to as “Black Box”). The Agreement (as defined below) between
Customer and the applicable Black Box operating entities sets forth the legal rights and obligations governing Black Box’s provisioning and delivery of hosted unified communications services and/or contact center services (“Service(s)”)
to Customer, Customer’s use of such Services and use of any devices used in conjunction with the Services, such as an IP telephone, Multimedia Terminal Adapter and/or Unified Communications Software (including, but not limited
to, softphones, attendant consoles, contact center agent software and any other components of the provided solution), Analog Telephone Adapter, switch, router or any other IP connection device (collectively, “Devices” or
“Equipment”). This Agreement consists of these terms and conditions, signed Order Form(s), which includes the applicable Statement of Work (“SOW”) and applicable Software End User License Agreement (collectively,
the “Agreement”), and all such documents shall be incorporated into this Agreement by reference and shall become a part of this Agreement during the Term (as defined below and set forth in the applicable Order Form).
Customer Orders shall be set forth on the Order Form(s) signed by the Customer (collectively, the “Order Form”).
In the event of any inconsistency between the Terms and Conditions, Statement of Work, exhibits, attachments or Order Form made a part or in accordance with the Agreement precedence shall be given to:
(1) The applicable end user software license;
(2) General Terms and Conditions set forth herein;
(3) The Statement of Work;
(4) Any Order Form executed pursuant to this Agreement; and
(5) Any other attachment or exhibit to this Agreement.
THESE GENERAL TERMS AND CONDITIONS MAY BE MODIFIED FROM TIME TO TIME AS REQUIRED BY LAW. CUSTOMER AGREES TO BE BOUND BY SUCH CHANGES, AS THEY PERTAIN TO THE PARTICULAR SERVICES CUSTOMER HAS CHOSEN OR MAY CHOOSE IN THE FUTURE. IF SUCH CHANGES ARE NOT MANDATED BY LAW, SUCH CHANGES SHALL NOT BE APPLICABLE TO CUSTOMER. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO CASE SHALL ANY CHANGES DIMINISH ANY APPLICABLE SERVICE LEVEL AGREEMENTS ENTERED INTO AT THE TIME OF THE ORDER. CUSTOMER AGREES THAT ACCEPTANCE OF THIS AGREEMENT CONSTITUTES CONSENT TO THE USE OF ELECTRONIC RECORDS. IF CUSTOMER PLACES AN ORDER FOR SERVICES OR USES THE SERVICES, CUSTOMER IS DEEMED TO HAVE ACCEPTED THESE TERMS AND CONDITIONS.
1.1 The term of this Agreement shall commence on the date Black Box executes the applicable Order and will continue three (3) years thereafter (“Term”). The terms and conditions of this Agreement shall apply to any Order placed during the Term, even if performance under such Order extends beyond expiration of the Term. If neither Customer nor Black Box provides the other party written notice of cancellation at least thirty (30) days prior to the end of the then current Term, the Term will automatically renew for additional three (3) year periods at Black Box’s then current rate(s). Customer is purchasing the Service for full monthly terms, meaning that, if Customer attempts to terminate Service prior to the end of a monthly term, Customer will be responsible for the full month’s charges to the end of the then-current month, including, without limitation, unbilled charges, plus a Termination Fee (as defined in Section 4.3 herein), all of which will immediately become due and payable. Expiration of the Term or termination of Service will not excuse Customer from paying all accrued and unpaid charges due under this Agreement.
2.1 Service Description. The Black Box Hosted Unified Communications Service is a secure multimedia communications cloud service designed to provide Customers with a comprehensive suite of Unified Communications Services as more fully described in the attached Order Form(s).
2.2 Use of Service.
2.2.1 Customer is responsible for supplying, operating and supporting the Devices for use with the Service. Use of any Device in connection with the Service must be pre-approved by Black Box in writing.
2.2.2 Customer shall not resell or transfer the Service to another party without Black Box’s prior written consent.
2.2.3 In the event of a security threat (“Threat”), Black Box may, if necessary, limit or suspend immediately any Services without liability if reasonably necessary to prevent any harm to Black Box. Black Box will provide notice of such limitation or suspension as practicable depending on the nature of the Threat giving rise to the suspension. Customer shall follow all instructions provided by Black Box for the purpose of mitigating the effects of such Threat.
2.2.4 Customer shall ensure that it shall monitor the data that is created, input or generated by its use of the Services and create backups for both archival and emergency recovery purposes on a regular basis. Black Box shall have no obligations to Customer or any end users with respect to creating any backup copies of such data, and shall have no responsibility or liability whatsoever for the deletion or failure to store any information and/or other communications maintained or transmitted by the Services. Customer acknowledges and agrees that Black Box may establish limits as to the size of communications that it transmits or stores and the duration for which it stores any communications.
2.2.5 Certain Black Box Services may provide a function that allows voicemails to be converted to text and vice versa. Customer understands and agrees that these features may not accurately transcribe voicemails or articulate text messages, respectively, and is solely responsible for verifying the accuracy of the message when using such feature. Black Box expressly disclaims all liability with respect to the conversion of voicemails to text or vice versa, and Customer agrees to fully, finally, and forever release, discharge, hold harmless, and fully indemnify Black Box from and against any damages or liabilities of any kind related to Customer’s use of such features.
2.2.6 By transmitting or storing any communications through the Services, Customer grants to Black Box a worldwide, non-exclusive, irrevocable, perpetual, royalty-free, fully paid-up license to reproduce, transmit, and store such communications in order for Black Box to provide the Services.
2.3 Prohibited Uses. Customer shall not use the Service for any unlawful or inappropriate purpose, including, but not limited to, using the Service in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy or any similar behavior. If Black Box believes that Customer has used the Service for an unlawful or inappropriate purpose, Black Box may forward the relevant communication and other information, including Customer’s identity, to the appropriate authorities for investigation and prosecution. Customer hereby consents to Black Box’s forwarding of any such communications and information to these authorities. Black Box may provide information in response to law enforcement and governmental requests, subpoenas, court orders, in accordance with applicable law, including to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the Customer or others.
2.4 Intellectual Property Rights; Copyright; Trademark; Software.
2.4.1 Intellectual Property Rights. Notwithstanding anything else contained in this Agreement, Black Box and/or its suppliers retain all right, title, interest and intellectual property and proprietary rights in and to the Devices and Services, all copies and derivative works thereof (by whomever produced) and all other materials created or generated by Black Box and/or its suppliers in connection with the performance of this Agreement. Customer will not acquire any rights therein by implication, estoppel or otherwise. Without limiting such prohibition, Customer hereby assigns and agrees to assign to Black Box all right, title and interest in and to any and all derivative works of the Devices and Services and any intellectual property or other materials created or generated, or any suggestions, enhancement requests, recommendations or other feedback provided by Customer in connection with this Agreement. The rights granted herein shall not be deemed to constitute a transfer, sale or conveyance of any ownership in of any of the Black Box and/or its suppliers intellectual property or other proprietary rights, including without limitation any proprietary software or hardware, patents, copyrights, trade secrets, or other rights (the “Black Box IP”), all of which are owned by Black Box and/or its suppliers. Customer shall not decompile or reverse engineer any of the Black Box IP, nor shall Customer create or develop, or attempt to create or develop, any derivative work based in whole or in part on the Black Box IP. As between Black Box and Customer, all title and intellectual property rights in and to the Customer data is owned exclusively by Customer.
2.4.2 Copyright and Trademark. The Service and any related software and all information, documents and materials on Black Box’s websites are protected by trademark, copyright or other applicable intellectual property laws and international treaty provisions. All of Black Box’s websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively, “marks”) are and will at all times remain the exclusive property of Black Box or its third party providers. Nothing in this Agreement grants Customer the right or license to use any marks.
2.4.3 Software End User License Agreement.
184.108.40.206 Direct License. Customer acknowledges that Customer’s Software license is granted directly by the Software publisher or equipment manufacturer from which the Software is provided, and not by Black Box. Customer acknowledges and agrees that Customer is only granted a limited right and license to authorize use by Customer of the Software as part of the Hosted Unified Communications Services provided hereunder, pursuant to the terms and conditions of Customer’s end user license agreement for such Software and does not transfer any right, title or interest in or to any Software, or any intellectual property rights therein, to Customer or any other third party.
220.127.116.11.1 For GENBAND Solution. The Customer’s end user software license agreement for the GENBAND Solution is set forth in the GENBAND Software End User License Agreement, incorporated herein by reference.
18.104.22.168.2 For Cisco Solution. The Customer’s end user software license agreement for the Cisco Solution is located at: http://www.cisco.com/c/en/us/td/docs/general/warranty/English/EU1KEN_.html and incorporated herein by reference.
22.214.171.124 Grant of License (Aspect Solution). Absent such direct license, Black Box grants Customer a non-exclusive license to use the Software in the Devices in support of the Services for its useful life in accordance with the terms of the Aspect Software End User License Agreement (incorporated herein by reference), provided Customer:
126.96.36.199.1 Does not disclose information about the Software to a third party without Black Box’s prior consent unless that third party is bound by a confidentiality or non-disclosure agreement that is at least as restrictive as Section 10 of this Agreement and agrees to the terms of the Aspect Software End User License Agreement;
188.8.131.52.2 Uses the Devices, including Software, solely for Customer’s internal business purposes;
184.108.40.206.3 Does not copy any part of the Software without Black Box’s consent (except for a single copy for backup purposes only);
220.127.116.11.4 Does not attempt to develop any source code from the Software;
18.104.22.168.5 Does not attempt to reverse engineer, decompile, disassemble, alter, add to, delete from, or otherwise modify the Software, except to the extent that such modification capability is an intended feature of the Software; and
22.214.171.124.6 Returns, erases or destroys any Software on any media being recycled or discarded and so certifies to Black Box. Customer acknowledges and agrees that Customer is only granted a limited right and license to authorize use by Customer of the Software as part of the Services provided hereunder, pursuant to these terms and conditions and Black Box does not transfer any right, title or interest in or to any Software, or any intellectual property rights therein, to Customer or any other third party. Notwithstanding any other provision of this Agreement, Customer’s failure to comply with the terms of this Section or the Software End User License Agreement shall be deemed a material breach and Black Box shall give written notice to Customer of the breach and Customer shall promptly cure the breach. If Customer fails to timely cure the breach, Black Box shall thereafter be entitled to immediately terminate this Agreement and all of Customer’s rights and privileges to the Software, and to seek injunctive and other equitable relief.
2.4.4 Software Upgrades. During the Term, Customer will keep any Software residing on all computers, smartphones and tablets up to date with the latest updates and upgrades made generally available by Black Box. Such updates and upgrades will be applied by Customer within thirty (30) days of release by Black Box or immediately if designated as critical by Black Box. In the event Customer fails to apply such updates and/or upgrades as set forth herein, Black Box shall not be liable for Service fails resulting from Customer’s non-application.
2.5 Tampering with the Device or Service. Customer shall not tamper with any Device or the Service, including, but not limited to, changing the electronic serial number or equipment identifier of any such Device, and shall not perform a factory reset of any Device without Black Box’s prior written consent.
2.6 Theft of Service. Customer shall notify Black Box immediately, in writing or by calling Black Box’s Customer Support Department at (800) 456-1128, if Customer becomes aware at any time that Customer’s Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When Customer calls or writes, Customer must provide Customer’s account number and a detailed description of the circumstances of the theft, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the termination of Customer’s Service and additional charges to Customer. Until such time as Black Box receives notice of the theft, fraudulent use or unauthorized use, Customer will be liable for all use of the Service arising from any and all stolen, fraudulent or unauthorized use of the Service.
2.7 Service Distinctions. The Service does not include the provision of interconnected Voice over Internet Protocol (“VoIP”) services, and Black Box is not a provider of interconnected VoIP services under the Agreement. Customer is responsible for its own connectivity to the Public Switched Telephone Network (“PSTN”), and the quality of bandwidth thereof. PSTN traffic drops for numbering plans, local and long distance services, including the origination of voice traffic to and the termination of voice traffic from, the PSTN, emergency calling and E-911 systems and connectivity, and direct inbound dialing (“DID”) numbers are not available from or provided by Black Box hereunder, and are to be procured by Customer from a third party provider of such services. It is Customer’s responsibility to take affirmative steps to provide to such third party provider with the physical location at which any interconnected VoIP services will be utilized in order to facilitate the routing of emergency calls and the transmission of location and numbering information to the appropriate emergency response center, including to the extent required by applicable law, to provide the physical location of each end user location, and to ensure that such location information contains automatic number identification and automatic location identification information which meets the emergency location specificity requirements of the state and local laws and regulations where the Service will be used. The Service is not a telecommunications service and Customer is responsible for reliable connection to the Internet or to the Services Data Center, as applicable. Black Box provides the Service on a reasonable commercial efforts basis. There are important distinctions between telecommunications service and the Service. The Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect Customer’s rights of redress before regulatory agencies.
2.8 Incompatibility With Other Services. If Customer chooses to access Service via the Internet, the Service may not be compatible with some broadband services and some providers of broadband service may provide modems that prevent the transmission of communications using the Service. Black Box does not warrant that the Services will be compatible with all broadband services and expressly disclaims any and all express or implied warranties regarding the compatibility of the Service with any particular broadband service. Except for the Cisco product offering, Customer is responsible for provisioning each Device as needed to create the necessary SIP Trunk endpoints.
2.9 Breach and Termination. Black Box reserves the right to immediately terminate or modify Customer’s Service if Black Box determines, in its sole and absolute discretion, that Customer has used the Service or any Device for any prohibited or unauthorized purpose or activity or if Customer has otherwise breached the terms of this Agreement. In any such instance, Customer shall be responsible for the Termination Fee (as defined in Section 4.3 herein), if applicable, which will become immediately due and payable upon termination of Customer’s Service.
3 CHARGES; PAYMENTS; TAXES.
3.1 Billing. When the Service is activated, Customer must provide Black Box with a valid email address and a valid check or credit or debit card number from a card issuer that Black Box accepts. Black Box reserves the right to stop accepting credit or debit cards from one or more issuers at any time in Black Box’s sole discretion and without advance notice. If Customer’s credit or debit card expires, Customer closes its account, Customer’s billing address changes or Customer’s credit or debit card is canceled and replaced on account of loss or theft, Customer must advise Black Box at once. Black Box will bill certain charges, applicable taxes, including, but not limited to, excise taxes, and surcharges monthly in advance and other charges monthly in arrears to Customer’s credit or debit card on record, if so authorized hereunder. Such charges include, but are not limited to:
3.1.1 Activation fees;
3.1.2 Monthly Service fees;
3.1.3 Termination fees; and
3.1.4 Other billable services, such as MAC (moves, adds and changes), as applicable. Equipment Purchases and related shipping and handling may be charged to terms account or credit card, whichever the Customer prefers. The amount of such fees and charges shall be set forth on the applicable Order. Notification of monthly invoices will be sent to Customer via Customer’s email address on file with Black Box. Note that a three percent (3%) fee will be added to Customer’s monthly invoice for credit card transactions.
3.2 Billing Disputes. Customer must notify Black Box in writing within seven (7) days after receiving Black Box’s invoice or Customer’s credit or debit card statement if Customer disputes any Black Box charges on such invoice or credit or debit card statement or Customer will be deemed to have waived any right to contest such charges. All notices of disputed charges must be sent to: Black Box Network Services, 5050 Lincoln Drive, Suite 300, Minneapolis, MN 55436, Attn: Customer Billing Department.
3.3 Payment and Collection.
3.3.1 Payment. Black Box only accepts payment by check, credit or debit card, unless other payment terms have been explicitly agreed to in writing by Black Box. In the event Customer’s subscription to the Service authorizes Black Box to charge Customer’s credit or debit card, this authorization will remain valid until thirty (30) days after Black Box receives written notice from Customer terminating Black Box’s authority to charge Customer’s credit or debit card. Black Box may terminate Customer’s Service at any time in Black Box’s sole and absolute discretion if any charge to Customer’s credit or debit card is declined or reversed, Customer’s credit or debit card expires and Customer has not provided Black Box with a valid check or replacement credit or debit card or in case of any other non-payment of account charges.
3.3.2 Late Payments. Late payments are subject to a late payment charge of the lesser of one and one-half percent (1.5%) for each thirty (30) day period that they remain unpaid or the maximum permitted by law.
3.3.3 Collection. If Customer’s Service is terminated, Customer will remain fully liable to Black Box for all charges pursuant to this Agreement and any and all costs Black Box may incur to collect such amounts, including, without limitation, collection costs and attorney’s fees.
3.4 Taxes. Customer is responsible for all applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges, now in force or enacted in the future, that arise from or as a result of Customer’s subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service and will be billed to Customer’s credit card as set forth in this Agreement. If Customer is exempt from payment of such taxes, Customer must provide Black Box with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date Black Box receives such certificate.
3.5 Termination; Discontinuation of Service. Black Box reserves the right, in accordance with applicable law, to suspend or discontinue the Service generally, or to terminate Customer’s Service, at any time, in Black Box’s sole and absolute discretion, for any reason or for no reason. If Black Box discontinues the Service generally, or terminates Customer’s Service without a stated reason, then Customer will only be responsible for charges accrued through the date of such termination, including a pro-rated portion of the final month’s charges. However, if Black Box terminates Customer’s Service on account of Customer’s breach of this Agreement or if Customer terminates Services, Customer will be responsible for the Customer’s last full month’s charges multiplied by the number of months remaining in the current Term, including, without limitation, any and all unbilled charges (“Termination Fee”), all of which will immediately become due and payable.
4. MINIMUM COMMITMENT; TERMINATION.
4.2 Minimum Commitment.
4.2.1 Customer rates for each category of Service will be defined in the applicable Order. Customer shall commit to a minimum of users in each selected Service category. Customer’s usage will be measured on a “Peak” basis each month (either concurrent users or named (configured) users depending on the applicable selected Service consumed) during the Term. The term “Peak” means the highest number of users in that specific measurable month. In the event Customer’s actual usage of the Service is below the minimum commitment for any specific Service category as originally established in the applicable Order, Customer will be invoiced at the minimum commitment level. Customer will be provided a “Ramp-up” period for each selected Service category as defined in the applicable Order.
4.2.2 Customer Affiliates. The purchased Service amounts from all Customer participating affiliates procuring Services from Black Box under the terms of this Agreement will contribute to the satisfaction of the applicable minimum commitment.
4.3 Termination. Black Box reserves the right, in accordance with applicable law, to suspend or discontinue the Service generally, or to terminate Customer’s Service, at any time, in Black Box’s sole and absolute discretion, for any reason or for no reason. If Black Box discontinues the Service generally, or terminates Customer’s Service without a stated reason, then Customer will only be responsible for charges accrued through the date of such termination, including a pro-rated portion of the final month’s charges. However, if Black Box terminates Customer’s Service on account of Customer’s breach of this Agreement or if Customer terminates Services, Customer will be responsible for the Customer’s last full month’s charges multiplied by the number of months remaining in the current Term, including, without limitation, any and all unbilled charges (“Termination Fee”), all of which will immediately become due and payable.
5. LIMITATION OF LIABILITY.
5.1 Limitation of Liability. Black Box shall not be liable for any delay or failure to provide the Service, including 911 Dialing, at any time or from time to time, or any interruption or degradation of voice quality or any other aspects of the Service caused by:
5.1.1 An act or omission of an underlying carrier, service provider, vendor or other third party;
5.1.2 Service, equipment, network or facility failure, upgrade, modification, shortage or relocation;
5.1.3 Service, equipment, network or facility failure caused by the loss of power to Customer;
5.1.4 Outage of, or blockage of ports by, Customer’s ISP or broadband service provider (if different than Black Box) or other impediment to usage of the Service caused by any third party;
5.1.5 Any act or omission by Customer or any person using the Service or Devices; or
5.1.6 Any other cause that is beyond Black Box’s control, including, without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication or the inability of communications (including, without limitation, 911 Dialing) to be connected, completed or forwarded. Black Box’s aggregate liability under this Agreement shall not exceed the amount of Service charges having accrued during the affected time period.
5.2 Disclaimer of Liability for Damages. IN NO EVENT WILL BLACK BOX, ITS PARENT AND SUBSIDIARY COMPANIES AND COMPANIES UNDER COMMON CONTROL WITH ANY OF THE FOREGOING AND ITS AND THEIR SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS, VENDORS, INSURERS, ATTORNEYS OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. IN ADDITION, BLACK BOX AND ITS VENDORS AND/OR SERVICE PROVIDERS DISCLAIM ANY LIABILITY AND CUSTOMER HEREBY WAIVES ALL CLAIMS AGAINST BLACK BOX AND ITS VENDORS AND/OR SERVICE PROVIDERS IN REGARDS TO THE USE OF THE GENCOM AND DESKTOP CLIENTS FOR EMERGENCY 911 CALLING AND OTHER SIMILAR SYSTEMS OR USE WITHOUT THE APPROPRIATE NETWORK DESIGN ENGINEERING IN ANY HAZARDOUS ENVIRONMENTS REQUIRING FAIL SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, WEAPONS SYSTEMS, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE GENCOM AND DESKTOP CLIENTS SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT BLACK BOX WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
5.3 Disclaimer of Liability for Billing Errors. The liability of Black Box for errors in billing that result in overpayment by the Customer shall be limited to a credit equal to the dollar amount erroneously billed. Furthermore, no errors shall change or diminish Customer’s obligation to pay for Services rendered or used.
6.1 Customer shall defend, indemnify and hold harmless Black Box, together with its parent and subsidiary companies and companies under common control with any of the foregoing and its and their shareholders, officers, directors, employees, subcontractors, vendors, insurers, attorneys and agents and any other service provider who furnishes services to Customer in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, Customer or any third party or user of the Service, relating to breach of this Agreement, Customer’s failure to comply with the regulatory and registration obligations associated with applicable telecommunications services and related laws and regulations, Customer’s use or users’ use of the Services, any Devices or this Agreement including, without limitation, 911 Dialing.
7.1 BLACK BOX MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR ANY DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S OR USER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, BLACK BOX DOES NOT WARRANT THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER BLACK BOX, ITS PARENT AND SUBSIDIARY COMPANIES AND COMPANIES UNDER COMMON CONTROL WITH ANY OF THE FOREGOING NOR ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS, VENDORS, INSURERS, ATTORNEYS OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES, DEVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO BLACK BOX’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S OR USER’S DATA, FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF BLACK BOX’S OR ITS SERVICE PROVIDER’S OR VENDORS’ NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY BLACK BOX OR BLACK BOX’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
7.2 BLACK BOX disclaims any liability and CUSTOMER hereby waives all claims against BLACK BOX in regards to the use of the GENCOM AND DESKTOP CLIENTS for emergency 911 calling and other similar systems or use without the appropriate network design engineering in any hazardous environments requiring fail safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, direct life support machines, weapons systems, or any other application in which the failure of the GENCOM AND DESKTOP CLIENTS Software could lead directly to death, personal injury, or severe physical or environmental damage.
9. FORCE MAJEURE.
9.1 Except for Customer’s payment obligations hereunder, a party’s non-performance or delay shall be excused to the extent the failure or delay in performance is the result of events beyond such party’s reasonable control including, without limitation, governmental actions, civil unrest, terrorism, power surges or failure, fire, water and acts of God, including, without limitation, rain, floods, earthquakes or lighting.
10. CONFIDENTIALITY; SECURITY OF USER IDs AND PASSWORDS.
10.1 Confidentiality. During the Term of this Agreement, Black Box and Customer may be exposed to the other’s confidential or proprietary information (“Confidential Information”). Confidential Information shall exclude any information in the public domain or that is independently developed by the receiving party. Each party agrees to:
10.1.1 Hold the Confidential Information in strict confidence;
10.1.2 Not to disclose any such Confidential Information to any person (except as required by court order, lawful process or as otherwise required by law); and
10.1.3 Not to use any of the other party’s Confidential Information for its own or another’s benefit.
10.1.4 Customer agrees that any violation of this provision regarding confidentiality will result in irreparable injury to Black Box and agrees that Black Box shall have the right to seek a restraining order, injunction or any other remedies available at law or in equity. The parties agree to waive any applicable bond requirement for enforcement of this provision.
10.2 Security of User IDs and Passwords. For the Services provided hereunder that require the use of passwords for access by users, a user ID and password will be selected for each Customer or user. Customer agrees that the security of all user ID and password information is extremely important, that such user IDs and passwords are necessary to access these systems and that Customer’s accidental or unauthorized disclosure of such user IDs and passwords may have serious consequences. All such information shall be treated as Confidential Information. By enrolling for and using these Services, Customer accepts sole responsibility for the security and confidentiality of any designated IDs and passwords. Black Box shall have no liability for the consequences of Customer’s failure to maintain the security of its user information, IDs or passwords, or the risks associated with using the Services. In the event of a breach of security through Customer’s account, Customer will be liable for any unauthorized use of the Service until Customer notifies Black Box’s Customer Care Department.
11.1 Notices shall be in writing and will be deemed given when delivered in person or received via mail, or when sent via facsimile with confirmation or overnight courier with confirmed delivery. The respective addresses of the parties for notice are:
11.1.1 To Customer: address indicated on the Order; or,
11.1.2 To Black Box Network Services (with a copy to the General Counsel): Attn: Corporate Billing, 5050 Lincoln Drive, Suite 300, Minneapolis, MN 55436. Customer shall notify Black Box of any changes to its address.
12. GENERAL PROVISIONS.
12.1 Assignment. Customer shall not assign this Agreement without Black Box’s prior written consent.
12.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
12.3 Waiver. A party’s waiver of any provision or default shall not be a waiver of any other provision or default.
12.4 Severability. If any Court finds any provision of this Agreement to be void, unlawful or unenforceable under any applicable statute or other controlling law, such provision shall be deemed severed and the remainder of this Agreement shall continue in full force and effect.
12.5 Governing Law. This Agreement shall be governed by the laws of the State of New York without regard to its choice of laws principles.
12.6 No Third Party Beneficiaries. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement or cause of action or creates any other third party beneficiary rights.
12.7 Agreement Precedence. In the event of any conflict between these terms and conditions and other documents attached hereto, the order of precedence shall be: (i) the applicable end user software license; (ii) these terms and conditions; (iii) the Scope of Work; (iv) any Order; and (vi) any other attachments and/or exhibits.
12.8 Independent Contractor. Black Box and Customer are independent contractors with respect to all rights and obligations under this Agreement.
12.9 Entire Agreement and Modification. This Agreement, as may be amended from time to time without notice, and the rates for Services and other terms and conditions found on Black Box’s website, supersedes all prior or contemporaneous proposals, communications and negotiations, both oral and written, relating to the subject matter of this Agreement and constitutes the entire agreement between Black Box and Customer with respect to the subject matter herein and governs the use of the Service by Customer, its employees, visitors and guests. No subsequent agreement among the parties concerning the Services shall be effective or binding unless made in writing and executed by authorized representatives of both parties. Neither electronic mail nor instant messaging shall be considered a “writing” sufficient to change, modify, extend or otherwise affect the terms of this Agreement.