This Master Services Agreement (“Agreement”) is entered into by and between Exucom Systems, Inc. (“EXUCOM”) and the customer identified in the applicable Order Form (“Customer”). By executing an Order Form or using the Services, Customer agrees to be bound by this Agreement.
1.ORDER FORM
1.1 Order Form. The "Order Form" is defined as an Online or Physical Order Form provided to the Customer that provides contractual obligations and references this agreement. In the event of a conflict between this Agreement and an Order Form, the Order Form shall control with respect to the Services and pricing set forth therein.
2. SERVICES OVERVIEW
EXUCOM provides a bundled communications and document processing platform (“Services”) via third-party providers that may include:
Services may be provided as a bundled solution or as individual components, including standalone or integrated deployments. The specific Services provided to Customer will be those set forth in the applicable Order Form.
3. THIRD-PARTY SERVICES & TERMS
3.1 Third-Party Components.
Certain Services may rely on or incorporate third-party providers, including but not limited to:
EXUCOM may update, replace, or supplement such third-party providers from time to time as part of the ongoing operation and improvement of the Services, provided that such changes do not materially degrade the overall functionality of the Services.
3.2 Third-Party Terms. Customer agrees to comply with the applicable end user license agreements, terms of service, and acceptable use policies of such third-party providers (“Third-Party Terms”), as made available to Customer, but only to the extent Customer accesses, uses, or enables the applicable third-party service.
Applicable Third-Party Terms include, but are not limited to:
3.3 Applicability of Third-Party Terms. Third-Party Terms apply solely to the specific Services that Customer purchases, accesses, enables, or uses. Third-party services may function as either (a) embedded components of the Services or (b) optional or separately enabled features. In all cases, Third-Party Terms apply only to the extent such services are utilized.
3.4 Order of Precedence. In the event of a conflict between this Agreement and any Third-Party Terms, the Third-Party Terms shall govern solely with respect to the applicable third-party service.
3.5 Third-Party Disclaimer. To the maximum extent permitted by law, EXUCOM does not control third-party services and is not responsible for their performance, availability, security, or compliance. EXUCOM shall not be liable for any failure, delay, or damages arising from or related to third-party services.
Where Customer uses third-party services independently of the EXUCOM platform, such use remains subject solely to the applicable Third-Party Terms, and EXUCOM shall have no responsibility for such standalone use beyond billing or administrative support, if applicable.
3.6 Flow-Down Obligations. Customer agrees to comply with all applicable Third-Party Terms and acceptable use policies made available to Customer.
3.7 Additional Services. Customer may elect to purchase or enable additional Services during the term of this Agreement. Such Services will be governed by this Agreement and the applicable Third-Party Terms upon activation or use.
4. FEES & BILLING
4.1 Price. Customer agrees to pay all fees specified in the Order Form, including:
4.3 Payment Terms. Invoices are due within thirty (30) days of the invoice date.
4.3.1 Customer Purchase Orders Payment of EXUCOM invoices shall not be dependent upon a Customer generated purchase order. If a Customer desires a EXUCOM invoice to reference a Customer purchase order, Customer shall deliver to EXUCOM a written purchase order within ten (10) days of the Effective Date set forth on the first page of this Agreement.
4.3.2 Minimum Monthly Payment. If the Order Form sets out a monthly or annual minimum payment obligation, then the Customer will be invoiced for the minimum amount if that amount is not met by Customer usage.
4.3.3 Late Payments. Past due balances may accrue interest at 1.5% per month (or maximum allowed by law).
4.3.4 Disputes. All billing disputes must be submitted in writing within ten (10) days of invoice date or are deemed accepted.
4.3.5 No Offset. Customer may not withhold or offset payment for any reason.
4.4 Taxes. Customer will pay, and EXUCOM reserves the right to collect in arrears, all sales, use, excise or other transaction taxes or similar charges imposed or assessed on Customer by any foreign, federal, state, commonwealth, provincial, county, or other government authority upon or with respect to the Services provided under this Agreement. If a Customer claims exemption from any such taxes or charges, Customer must provide EXUCOM in advance with a current, valid exemption certificate for the applicable tax or charge.
4.5 Additional Services & Pricing Addenda. Customer may elect to purchase or enable additional Services during the term of this Agreement. Any such additional Services shall be documented in a written addendum, updated Order Form, or other pricing schedule (each, a “Pricing Addendum”) referencing this Agreement.
Each Pricing Addendum shall set forth the applicable fees, billing structure, and any service-specific terms for the additional Services. Upon execution or acceptance (including electronic acceptance) of a Pricing Addendum, such additional Services shall be incorporated into and governed by this Agreement.
Unless otherwise expressly stated in the applicable Pricing Addendum, all fees for additional Services shall be billed in accordance with the terms set forth in this Section 4. EXUCOM may begin provisioning or enabling such additional Services upon Customer’s request, and billing may commence upon activation or use, provided that applicable pricing has been communicated to Customer.
5. TERM & RENEWAL
This Agreement begins on the Effective Date and continues for the term specified in the Order Form. Agreements automatically renew unless either party provides at least thirty (30) days’ written notice of non-renewal.
6. SERVICE SUSPENSION & TERMINATION
6.1 Customer Early Termination. Customer may not terminate prior to the end of the term without payment of applicable early termination fees as defined in the Order Form.
6.2 Suspension for Non-Payment. EXUCOM may suspend Services if payment is more than fifteen (15) days past due (i.e., 45 days from invoice date).
Suspension may include:
6.3 Suspension for Compliance. EXUCOM may suspend Services immediately if required due to:
6.4 Impact of Suspension. Customer acknowledges suspension may result in:
EXUCOM is not liable for any resulting damages.
6.5 Termination for Non-Payment. Accounts more than thirty (30) days past due may be terminated.
6.6 Collections. Accounts more than sixty (60) days past due may be referred to collections. Customer is responsible for all collection costs, including attorneys’ fees.
6.7 Reinstatement. Restoration of Services requires:
Service restoration is not guaranteed to be immediate.
7. SERVICE LIMITATIONS
7.1 Services are provided on a commercially reasonable basis. EXUCOM does not guarantee uninterrupted service, error-free operation, or successful transmission or receipt of any fax or document, and shall not be responsible for failed or delayed transmissions.
7.2 Document Processing. Customer acknowledges that document processing and data extraction services (including those provided via Weave) rely on automated and AI-based systems that may not be 100% accurate. Customer is solely responsible for reviewing and validating all processed data prior to use.
8. Acceptable UseCustomer agrees to use the Services only for lawful purposes and in compliance with all applicable laws and regulations, including but not limited to the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.
Customer shall not use the Services to:
EXUCOM reserves the right to suspend or terminate Services for violations of this section.
9. Number Ownership and Porting Rights
9.1 Liability. Customer understands that the Service, as owner of all Service telephone number(s), will not be liable for any damages whatsoever arising out of any re-assignment of any Service telephone number following termination of this Agreement or deletion by Customer of such telephone number from Customer's account.
9.2 Number Porting. At Customer’s request (subject to carrier support), EXUCOM will assist customer in porting U.S. fax numbers to EXUCOM’s network for a fee set by EXUCOM.
9.2.1 FOC Date. As part of the process to port numbers, EXUCOM will obtain a firm order commitment date (“FOC Date”) from the telephone carrier. The FOC Date is the date by which the porting of the numbers will occur. If EXUCOM has received a FOC Date for a number, and
(i) if Customer cancels a number that is to be ported within 48 hours of the FOC Date (the “FOC Date Window”), Customer agrees to pay EXUCOM a cancellation fee of $75 per number that is cancelled; and
(ii) if Customer cancels a number to be ported after a FOC Date is requested but before the FOC Date Window begins, Customer agrees to pay EXUCOM a cancellation fee of $55 per number that is cancelled.
9.2.2 International Number Porting. For number porting in all other countries, number porting fees will be quoted on a case-by-case basis provided number porting is supported in-country.
9.3 Ownership upon termination. Should the Customer wish to cancel the Service Agreement and retain the fax numbers provided by the Service, the Customer shall provide written notice at least ninety (90) days in advance.
9.3.1 Port Out. With respect to any inbound fax number provided by EXUCOM, or ported to EXUCOM from the Customer,
Customer shall have the right for a fee to port any such number to a carrier or other service provider of Customer's choosing.
9.3.1.1 U.S. Numbers. EXUCOM agrees, at EXUCOM’s standard fee to Customer per U.S. number, to take all practical steps to facilitate a EXUCOM request to the U.S. based carrier or service provider to port numbers, including without limitation to execute all necessary documents to facilitate the porting process.
9.3.2 International Numbers. For number porting in countries outside the United States, EXUCOM and Customer will mutually agree in writing to a fee for EXUCOM to undertake additional practical steps to facilitate number porting to the Customer’s chosen carrier or service provider, if number porting is supported in-country.
10. Limitations on Liability
10.1 Disclaimer of Warranties. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH IN AN ORDER FORM, EXUCOM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND EXUCOM HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER.
EXUCOM DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. EXUCOM CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, OR THE INTEGRITY OF DATA, INFORMATION, OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET.
EXUCOM WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEMS OR NETWORKS.
10.2 Exclusion of Damages. NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES, OR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER FORM OR SERVICES, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Limitation of Liability (Cap). IN NO EVENT WILL EXUCOM’S TOTAL LIABILITY IN CONNECTION WITH THE SERVICES OR ANY ORDER FORM, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO EXUCOM DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
10.4 Scope of Limitations. THE LIMITATIONS SET FORTH IN THIS SECTION 10 APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), EXCEPT FOR CLAIMS BASED ON FRAUD OR WILLFUL MISCONDUCT.
11. Miscellaneous
11.1 Independent Contractor. EXUCOM and Customer are independent contractors. Neither EXUCOM nor Customer shall have any authority to bind the other in any manner.
11.2 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of Illinois excluding its conflicts or choice of law rules. Except for injunctive relief required by EXUCOM to protect its intellectual property, all related litigation shall occur in the courts located in such jurisdiction. Customer may bring claims against EXUCOM only in Customer’s individual capacity and not as a plaintiff or class member in any purported class action or representative proceeding.
11.3 Headings. The headings herein are for convenience only and are not part of this Agreement.
11.4 Entire Agreement; Amendments. This Agreement, together with each written and signed Order Form, and each written and signed addendum, sets forth the entire agreement between EXUCOM and Customer with respect to the subject matter hereof, and supersedes all prior related oral and written agreements and understandings between the parties. Neither party is bound by or is liable for any alleged representation, promise, or inducement not expressly stated in this Agreement.
11.5 Severability. Should any provision of this Agreement be deemed contrary to applicable law or unenforceable by any court of competent jurisdiction, the provision shall be considered severed from this Agreement, but all remaining provisions shall continue in full force.
11.6 Notices. Any notice under this Agreement that must be given by a party in writing is deemed effective when sent via FedEx, Read Receipt Email or other commercial courier to the other party’s address or email address specified at the beginning of this Agreement or on the most recent Order Document.
11.7 Waiver. No waiver of any provision of this Agreement is binding on either party unless set out in a mutually signed written waiver. This Agreement shall only be amended by a written document signed by EXUCOM and Customer stating such document is an amendment or an addendum hereto. This Agreement may be assigned by EXUCOM to an Affiliate of EXUCOM or to a successor-in-interest/title of EXUCOM without consent. This Agreement shall not be assigned by Customer, in whole or in part, without EXUCOM’s prior written consent.
11.8 Non-Assignment; No Third-Party Rights. Customer may not assign or transfer this Agreement or any rights hereunder, and any attempt to do so is void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of, the parties and their respective successors and assigns. This Agreement is for the sole benefit of the parties (and the End Users) and there are no third-party beneficiaries.
11.9 Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
11.10 Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, EXUCOM’s records of such execution shall be presumed accurate unless proven otherwise.
11.11 Force Majeure. Except for payment obligations (including License Fees, maintenance and support fees, and Applicable Taxes) or any obligations relating to the protection of or restrictions applicable to the other party's confidential information or intellectual property, neither party shall be liable to the other or be in breach of this Agreement due to any failure or delay in performance of its obligations to the extent the failure or delay arises (and only for the duration that the affected party is precluded from performing) as a result of acts of God, fire, disaster, explosion, vandalism, storm, adverse weather conditions, strikes, labor disputes or disruptions, epidemics, wars, national emergencies, riots, civil disturbances, shortages of materials, actions or inactions of government authorities, terrorist acts, lockout, work stoppages or other labor difficulties, border delays, failures or interruptions of utilities or telecommunications equipment or services, system failures or any other cause that is beyond the reasonable control of that party.
11.12 Government Regulations. Software, including Documentation and technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software, Documentation and/or technical data.
11.13 Electronic Acceptance. Customer agrees that acceptance of this Agreement and any applicable Third-Party Terms by electronic means, including via checkbox, click-through, or online order submission, constitutes valid and binding acceptance. Customer agrees that EXUCOM’s electronic records of such acceptance shall be admissible and binding to the same extent as a signed written agreement.
11.14 Marketing. Customer agrees that during the term of this Agreement EXUCOM may publicly refer to Customer, orally and in writing, as a customer of EXUCOM. Any other public reference to Customer by EXUCOM requires the written consent of Customer.
11.15 Telephone Monitoring. To ensure EXUCOM’s customers receive quality service, EXUCOM randomly may monitor and record phone calls between EXUCOM’s customer service and technical support personnel and EXUCOM’s customers.
1.ORDER FORM
1.1 Order Form. The "Order Form" is defined as an Online or Physical Order Form provided to the Customer that provides contractual obligations and references this agreement. In the event of a conflict between this Agreement and an Order Form, the Order Form shall control with respect to the Services and pricing set forth therein.
2. SERVICES OVERVIEW
EXUCOM provides a bundled communications and document processing platform (“Services”) via third-party providers that may include:
- etherFAX (fax transmission infrastructure, which may be used as part of the EXUCOM platform or as a standalone or integrated service)
- Weave (intelligent document processing and automation)
- FaxFinder Cloud (cloud fax interface, user management, and workflow platform)
Services may be provided as a bundled solution or as individual components, including standalone or integrated deployments. The specific Services provided to Customer will be those set forth in the applicable Order Form.
3. THIRD-PARTY SERVICES & TERMS
3.1 Third-Party Components.
Certain Services may rely on or incorporate third-party providers, including but not limited to:
EXUCOM may update, replace, or supplement such third-party providers from time to time as part of the ongoing operation and improvement of the Services, provided that such changes do not materially degrade the overall functionality of the Services.
- etherFAX (fax transmission infrastructure)
- Weave (AI-based document processing)
- FaxFinder Cloud (cloud fax interface, user management, and workflow platform)
3.2 Third-Party Terms. Customer agrees to comply with the applicable end user license agreements, terms of service, and acceptable use policies of such third-party providers (“Third-Party Terms”), as made available to Customer, but only to the extent Customer accesses, uses, or enables the applicable third-party service.
Applicable Third-Party Terms include, but are not limited to:
- etherFAX Terms: etherfax End User EULA.pdf
- Weave Terms: WEAVECS-EULA-Master-v1.0-013026.pdf
3.3 Applicability of Third-Party Terms. Third-Party Terms apply solely to the specific Services that Customer purchases, accesses, enables, or uses. Third-party services may function as either (a) embedded components of the Services or (b) optional or separately enabled features. In all cases, Third-Party Terms apply only to the extent such services are utilized.
3.4 Order of Precedence. In the event of a conflict between this Agreement and any Third-Party Terms, the Third-Party Terms shall govern solely with respect to the applicable third-party service.
3.5 Third-Party Disclaimer. To the maximum extent permitted by law, EXUCOM does not control third-party services and is not responsible for their performance, availability, security, or compliance. EXUCOM shall not be liable for any failure, delay, or damages arising from or related to third-party services.
Where Customer uses third-party services independently of the EXUCOM platform, such use remains subject solely to the applicable Third-Party Terms, and EXUCOM shall have no responsibility for such standalone use beyond billing or administrative support, if applicable.
3.6 Flow-Down Obligations. Customer agrees to comply with all applicable Third-Party Terms and acceptable use policies made available to Customer.
3.7 Additional Services. Customer may elect to purchase or enable additional Services during the term of this Agreement. Such Services will be governed by this Agreement and the applicable Third-Party Terms upon activation or use.
4. FEES & BILLING
4.1 Price. Customer agrees to pay all fees specified in the Order Form, including:
- Subscription fees
- Usage-based fees (fax pages, processing volume, etc.)
- Overage charges
- Billing may automatically adjust to the applicable pricing tier
- EXUCOM may invoice for all usage at the applicable rate tier
4.3 Payment Terms. Invoices are due within thirty (30) days of the invoice date.
4.3.1 Customer Purchase Orders Payment of EXUCOM invoices shall not be dependent upon a Customer generated purchase order. If a Customer desires a EXUCOM invoice to reference a Customer purchase order, Customer shall deliver to EXUCOM a written purchase order within ten (10) days of the Effective Date set forth on the first page of this Agreement.
4.3.2 Minimum Monthly Payment. If the Order Form sets out a monthly or annual minimum payment obligation, then the Customer will be invoiced for the minimum amount if that amount is not met by Customer usage.
4.3.3 Late Payments. Past due balances may accrue interest at 1.5% per month (or maximum allowed by law).
4.3.4 Disputes. All billing disputes must be submitted in writing within ten (10) days of invoice date or are deemed accepted.
4.3.5 No Offset. Customer may not withhold or offset payment for any reason.
4.4 Taxes. Customer will pay, and EXUCOM reserves the right to collect in arrears, all sales, use, excise or other transaction taxes or similar charges imposed or assessed on Customer by any foreign, federal, state, commonwealth, provincial, county, or other government authority upon or with respect to the Services provided under this Agreement. If a Customer claims exemption from any such taxes or charges, Customer must provide EXUCOM in advance with a current, valid exemption certificate for the applicable tax or charge.
4.5 Additional Services & Pricing Addenda. Customer may elect to purchase or enable additional Services during the term of this Agreement. Any such additional Services shall be documented in a written addendum, updated Order Form, or other pricing schedule (each, a “Pricing Addendum”) referencing this Agreement.
Each Pricing Addendum shall set forth the applicable fees, billing structure, and any service-specific terms for the additional Services. Upon execution or acceptance (including electronic acceptance) of a Pricing Addendum, such additional Services shall be incorporated into and governed by this Agreement.
Unless otherwise expressly stated in the applicable Pricing Addendum, all fees for additional Services shall be billed in accordance with the terms set forth in this Section 4. EXUCOM may begin provisioning or enabling such additional Services upon Customer’s request, and billing may commence upon activation or use, provided that applicable pricing has been communicated to Customer.
5. TERM & RENEWAL
This Agreement begins on the Effective Date and continues for the term specified in the Order Form. Agreements automatically renew unless either party provides at least thirty (30) days’ written notice of non-renewal.
6. SERVICE SUSPENSION & TERMINATION
6.1 Customer Early Termination. Customer may not terminate prior to the end of the term without payment of applicable early termination fees as defined in the Order Form.
6.2 Suspension for Non-Payment. EXUCOM may suspend Services if payment is more than fifteen (15) days past due (i.e., 45 days from invoice date).
Suspension may include:
- Blocking outbound fax transmission
- Disabling inbound fax routing
- Restricting platform access
- Pausing document processing workflows
6.3 Suspension for Compliance. EXUCOM may suspend Services immediately if required due to:
- Violation of this Agreement
- Violation of Third-Party Terms
- Legal or regulatory requirements
- Violation of Section 8 (Acceptable Use)
6.4 Impact of Suspension. Customer acknowledges suspension may result in:
- Failed or undelivered communications
- Loss of inbound messages
- Workflow interruptions
EXUCOM is not liable for any resulting damages.
6.5 Termination for Non-Payment. Accounts more than thirty (30) days past due may be terminated.
6.6 Collections. Accounts more than sixty (60) days past due may be referred to collections. Customer is responsible for all collection costs, including attorneys’ fees.
6.7 Reinstatement. Restoration of Services requires:
- Full payment of outstanding balances
- Payment of any applicable reactivation fees
Service restoration is not guaranteed to be immediate.
7. SERVICE LIMITATIONS
7.1 Services are provided on a commercially reasonable basis. EXUCOM does not guarantee uninterrupted service, error-free operation, or successful transmission or receipt of any fax or document, and shall not be responsible for failed or delayed transmissions.
7.2 Document Processing. Customer acknowledges that document processing and data extraction services (including those provided via Weave) rely on automated and AI-based systems that may not be 100% accurate. Customer is solely responsible for reviewing and validating all processed data prior to use.
8. Acceptable UseCustomer agrees to use the Services only for lawful purposes and in compliance with all applicable laws and regulations, including but not limited to the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.
Customer shall not use the Services to:
- Send unsolicited or unauthorized fax transmissions or advertisements
- Engage in fraudulent, abusive, or unlawful activities
- Transmit content that violates applicable laws or third-party rights
- Interfere with or disrupt the integrity or performance of the Services
EXUCOM reserves the right to suspend or terminate Services for violations of this section.
9. Number Ownership and Porting Rights
9.1 Liability. Customer understands that the Service, as owner of all Service telephone number(s), will not be liable for any damages whatsoever arising out of any re-assignment of any Service telephone number following termination of this Agreement or deletion by Customer of such telephone number from Customer's account.
9.2 Number Porting. At Customer’s request (subject to carrier support), EXUCOM will assist customer in porting U.S. fax numbers to EXUCOM’s network for a fee set by EXUCOM.
9.2.1 FOC Date. As part of the process to port numbers, EXUCOM will obtain a firm order commitment date (“FOC Date”) from the telephone carrier. The FOC Date is the date by which the porting of the numbers will occur. If EXUCOM has received a FOC Date for a number, and
(i) if Customer cancels a number that is to be ported within 48 hours of the FOC Date (the “FOC Date Window”), Customer agrees to pay EXUCOM a cancellation fee of $75 per number that is cancelled; and
(ii) if Customer cancels a number to be ported after a FOC Date is requested but before the FOC Date Window begins, Customer agrees to pay EXUCOM a cancellation fee of $55 per number that is cancelled.
9.2.2 International Number Porting. For number porting in all other countries, number porting fees will be quoted on a case-by-case basis provided number porting is supported in-country.
9.3 Ownership upon termination. Should the Customer wish to cancel the Service Agreement and retain the fax numbers provided by the Service, the Customer shall provide written notice at least ninety (90) days in advance.
9.3.1 Port Out. With respect to any inbound fax number provided by EXUCOM, or ported to EXUCOM from the Customer,
Customer shall have the right for a fee to port any such number to a carrier or other service provider of Customer's choosing.
9.3.1.1 U.S. Numbers. EXUCOM agrees, at EXUCOM’s standard fee to Customer per U.S. number, to take all practical steps to facilitate a EXUCOM request to the U.S. based carrier or service provider to port numbers, including without limitation to execute all necessary documents to facilitate the porting process.
9.3.2 International Numbers. For number porting in countries outside the United States, EXUCOM and Customer will mutually agree in writing to a fee for EXUCOM to undertake additional practical steps to facilitate number porting to the Customer’s chosen carrier or service provider, if number porting is supported in-country.
10. Limitations on Liability
10.1 Disclaimer of Warranties. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH IN AN ORDER FORM, EXUCOM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND EXUCOM HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER.
EXUCOM DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. EXUCOM CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, OR THE INTEGRITY OF DATA, INFORMATION, OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET.
EXUCOM WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEMS OR NETWORKS.
10.2 Exclusion of Damages. NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES, OR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER FORM OR SERVICES, OR FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Limitation of Liability (Cap). IN NO EVENT WILL EXUCOM’S TOTAL LIABILITY IN CONNECTION WITH THE SERVICES OR ANY ORDER FORM, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO EXUCOM DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
10.4 Scope of Limitations. THE LIMITATIONS SET FORTH IN THIS SECTION 10 APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), EXCEPT FOR CLAIMS BASED ON FRAUD OR WILLFUL MISCONDUCT.
11. Miscellaneous
11.1 Independent Contractor. EXUCOM and Customer are independent contractors. Neither EXUCOM nor Customer shall have any authority to bind the other in any manner.
11.2 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of Illinois excluding its conflicts or choice of law rules. Except for injunctive relief required by EXUCOM to protect its intellectual property, all related litigation shall occur in the courts located in such jurisdiction. Customer may bring claims against EXUCOM only in Customer’s individual capacity and not as a plaintiff or class member in any purported class action or representative proceeding.
11.3 Headings. The headings herein are for convenience only and are not part of this Agreement.
11.4 Entire Agreement; Amendments. This Agreement, together with each written and signed Order Form, and each written and signed addendum, sets forth the entire agreement between EXUCOM and Customer with respect to the subject matter hereof, and supersedes all prior related oral and written agreements and understandings between the parties. Neither party is bound by or is liable for any alleged representation, promise, or inducement not expressly stated in this Agreement.
11.5 Severability. Should any provision of this Agreement be deemed contrary to applicable law or unenforceable by any court of competent jurisdiction, the provision shall be considered severed from this Agreement, but all remaining provisions shall continue in full force.
11.6 Notices. Any notice under this Agreement that must be given by a party in writing is deemed effective when sent via FedEx, Read Receipt Email or other commercial courier to the other party’s address or email address specified at the beginning of this Agreement or on the most recent Order Document.
11.7 Waiver. No waiver of any provision of this Agreement is binding on either party unless set out in a mutually signed written waiver. This Agreement shall only be amended by a written document signed by EXUCOM and Customer stating such document is an amendment or an addendum hereto. This Agreement may be assigned by EXUCOM to an Affiliate of EXUCOM or to a successor-in-interest/title of EXUCOM without consent. This Agreement shall not be assigned by Customer, in whole or in part, without EXUCOM’s prior written consent.
11.8 Non-Assignment; No Third-Party Rights. Customer may not assign or transfer this Agreement or any rights hereunder, and any attempt to do so is void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of, the parties and their respective successors and assigns. This Agreement is for the sole benefit of the parties (and the End Users) and there are no third-party beneficiaries.
11.9 Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
11.10 Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, EXUCOM’s records of such execution shall be presumed accurate unless proven otherwise.
11.11 Force Majeure. Except for payment obligations (including License Fees, maintenance and support fees, and Applicable Taxes) or any obligations relating to the protection of or restrictions applicable to the other party's confidential information or intellectual property, neither party shall be liable to the other or be in breach of this Agreement due to any failure or delay in performance of its obligations to the extent the failure or delay arises (and only for the duration that the affected party is precluded from performing) as a result of acts of God, fire, disaster, explosion, vandalism, storm, adverse weather conditions, strikes, labor disputes or disruptions, epidemics, wars, national emergencies, riots, civil disturbances, shortages of materials, actions or inactions of government authorities, terrorist acts, lockout, work stoppages or other labor difficulties, border delays, failures or interruptions of utilities or telecommunications equipment or services, system failures or any other cause that is beyond the reasonable control of that party.
11.12 Government Regulations. Software, including Documentation and technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software, Documentation and/or technical data.
11.13 Electronic Acceptance. Customer agrees that acceptance of this Agreement and any applicable Third-Party Terms by electronic means, including via checkbox, click-through, or online order submission, constitutes valid and binding acceptance. Customer agrees that EXUCOM’s electronic records of such acceptance shall be admissible and binding to the same extent as a signed written agreement.
11.14 Marketing. Customer agrees that during the term of this Agreement EXUCOM may publicly refer to Customer, orally and in writing, as a customer of EXUCOM. Any other public reference to Customer by EXUCOM requires the written consent of Customer.
11.15 Telephone Monitoring. To ensure EXUCOM’s customers receive quality service, EXUCOM randomly may monitor and record phone calls between EXUCOM’s customer service and technical support personnel and EXUCOM’s customers.