Terms of Service

These Terms of Service, together with the Order, Pricing Schedule, Use Policies and any other documents made part of the agreement (collectively, the “Agreement”), is made by and between PayG, LLC dba SkySwitch (“Company”, “we”, “us” or “our”) and the Reseller identified on the Order (“Reseller” “you” or “your”) (each individually a “Party” and collectively the “Parties”).

We provide services and equipment intended solely for business use pursuant to the terms and conditions set forth in the Agreement. By signing the Agreement or using the Services, you: (a) accept the Agreement and agree to be legally bound by its terms; and (b) represent and warrant that the person executing the Agreement has the authority to bind you.

These Terms of Service are effective as of March 1, 2026.

 

1. DEFINITIONS

a. “Account Data” means any data or metadata pertaining to you, your Customer(s) and their End User(s) account(s) including, without limitation, customer lists, customer contact details, customer payment information, customer login credentials, customer IP address information and other similar data.

b. “Affiliate(s)” means any individual, company, corporation, partnership, or other entity, directly or indirectly, controlling, controlled by, or under common control with a Party, with control being the ownership or control of at least fifty percent (50%) of the equity or voting rights.

c. “Customer” means a business who contracts with you for the provision of the Services.

d. “Customer Content” means the content of calls, facsimiles, SMS or MMS messages, voicemails, voice recordings, shared files, conferences, or other communications transmitted or stored through the Services.

e. “End User” means an individual user to whom you or your Customer(s) makes the Services available.

f. “Equipment” means hardware which you acquire from us, our Affiliates, or our authorized vendors for use in connection with the Services.

g. “Intellectual Property Rights” or “IP Rights” means all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (i) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (ii) copyrights and copyright registrations, and “moral” rights; (iii) the protection of trade and industrial secrets and Confidential Information; (iv) other proprietary rights relating to intangible property; (v) trademarks, trade names and service marks; (vi) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (vii) analogous rights to those set forth above; and (viii) divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).

h. “IP” means all intellectual property rights associated with any design, data, specification, know-how, software, device, technique, algorithm, method, discovery or invention, whether or not reduced to practice, relating to any: (i) Service, including our work product; (ii) result of a Service; (iii) joint development; or (iv) enhancement or improvement to or derivative of any of the foregoing.

i. “Losses” means any allegations, claims, demands, suits, proceedings, liabilities, judgments, awards, losses, damages, physical injury or death, damage to real property, costs, or expenses (including reasonable legal fees).

j. “Network” means the network and supporting facilities between and among our physical or virtual data centers or cloud environments under our direct control, up to and including the interconnection point between our network and facilities. The Network does not include the public internet, you or your Customer(s) own private network, or the PSTN.

k. “Service(s)” means all services available on our platform(s), including but not limited to desktop software and services, browser and mobile services and features, Unified Communications as a Service (“UCaaS”), SIP trunking, contact center, messaging services, and any additional services that may be offered by us.

l. “Software” means: (i) computer programs, written by us or our Affiliates, contractors, or other entities that comprise a series of instructions, rules, routines, or statements, regardless of the media in which recorded, that allow us to deliver the Services and products or to integrate with other systems, people, and services, including source code which allows computers, servers, and the like to perform a specific operation or series of operations; and (ii) recorded information comprising source code listings, design details, algorithms, processes, flow charts, formulas, and related material that would enable the computer program to be produced, created, operated, installed, or compiled.

m. “Taxes and Fees” means all taxes and fees arising in any jurisdiction imposed on or incident to the provision, sale or use of Service, including but not limited to value added, consumption, sales, use, gross receipts, foreign withholding (which will be grossed up), excise, access, bypass, ad valorem, franchise or other taxes, fees, duties, or surcharges (including regulatory and 911 charges), whether imposed on us or our Affiliates, along with similar charges. Taxes and Fees do not include taxes based on our employees and net income.

 

2. PROVISION OF THE SERVICE

a. General Terms

i. We will provide the Services as described in the Agreement.

ii. We may, in our sole discretion, change the Services, without any liability to you. If we make material changes to the Services, we will provide you with notice of such changes as soon as reasonably possible, and you will market the Services as modified.

b. Beta Services: We may, from time to time, offer access to services that are classified as a Beta version. Access to and use of Beta versions may be subject to additional agreements. We make no representations that a Beta version will ever be made generally available and reserve the right to discontinue or modify a Beta version at any time without notice. Beta versions are provided AS IS, may contain bugs, errors or other defects, and your use of a Beta version is at your sole risk.

c. Support: We provide technical support for Services to you as outlined in our Support Policy, available at https://docs.skyswitch.com/.

d. Professional Services: Certain Services may require professional services for implementation. If you opt to obtain this service from us, you will enter into a separate Statement of Work or submit a Support ticket which will identify the services to be provided and their associated fees and payment terms.

e. Subcontracting: We may provide any of the Services through any of our Affiliates or subcontractors, provided that we will bear the same degree of responsibility for acts and omissions for those subcontractors acting on our behalf in the performance of our obligations under the Agreement as we would bear if such acts and omissions were performed by us directly.

 

3. USE OF THE SERVICE

a. Service Requirements: Use of the Service requires one or more compatible devices, internet access, certain software, and may require obtaining updates or upgrades from time to time (collectively, “System Requirements”). You acknowledge and agree that you are solely responsible for: (i) satisfying the “System Requirements; and (ii) all Customer equipment, including the installation and management of all Customer Equipment. Inability to use the Services may not be used as a basis for withholding payments due under the Agreement because the ability to use the Service may be affected by the performance of hardware, software, and internet access not controlled by us.

b. Not Responsible for Quality of Service: Uptime of the Services does not guarantee overall quality of your service to the End User. You and/or your End Users (and not us) are responsible for the quality of the last mile internet connection, which determines the quality of service the End User will experience.

c. Incompatibility With Certain Broadband Services: We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.

d. Use of Services: You are responsible and liable for all use of the Services, with or without your permission. The Services may not be used for any unlawful, abusive or fraudulent purpose including but not limited to those identified in Section 3(f) below. Additionally, you are responsible for ensuring that all End Users use the Services in compliance with the use policies available at https://skyswitch.com/legal/ (collectively, the “Use Policies”), which are incorporated into and form part of the Agreement. You may not use, or permit the use of, the Services in any way which interferes with the use of the Services by others or with the operation of the Network. You shall defend, indemnify, and hold harmless us and our suppliers, our officers, directors, shareholders, agents, Affiliates and employees from and against any claims, liabilities, losses, costs or damages (including legal fees and costs) arising out of any third-party claim or allegation that if true, would constitute a violation of the above. Any violation of this Section shall constitute a material breach pursuant to Section 8(c) of the Agreement.

e. Fraudulent or Illegal Activity:

i. You shall bear the risk of loss arising from any unauthorized or fraudulent use of the Services provided under the Agreement, including the origination of unlawful traffic or other violations of email, telemarketing, or telecommunications laws, rules, regulations, and orders by you, your Customers, and End Users (including, without limitation, using mass dial or pre-recorded calling applications in violation of law or regulation, overloading servers, violating caller-ID regulations, causing any portion of the Network to be blocked by other network providers, or generating unresolved third-party complaints). We reserve the right, but are not required, to take any and all action we deem appropriate, including blocking access to particular calling numbers or geographic areas, to prevent or terminate any fraud or abuse in connection with the Services or any use thereof. You are responsible for your own network security and security violation response procedures.

ii. If you become aware that the security of your network, IP address(es), and/or any equipment components have been stolen or hacked by an unauthorized third party, you must immediately (i) attempt to stop or disconnect the fraudulent traffic, and (ii) notify our Support Team by calling and sending an email with "Fraud Traffic" in the subject line. When you contact us to report the problem, you must include the account number and a description of the alleged theft or fraudulent use of Services. We reserve the right to immediately suspend the fraudulent Services. We will not issue credits for any charges resulting from fraudulent or unauthorized use.

iii. If we believe that you, your Customer(s) or their End Users has or have used the Service(s) for an unlawful purpose, we may forward the relevant communication and other information, including your identity or that of you, your Customer and End User(s), to the appropriate authorities for investigation and prosecution. Appropriate authorities include, without limitation, law enforcement agencies, the Federal Communications Commission (“FCC”) or the single industry Traceback Consortium designated by the FCC to trace suspicious calls back to the point of origin. You hereby consent to the forwarding of any such communications and information to these authorities, including, as necessary to comply with a lawful request for Confidential Information.

f. Recording Conversations: Some Services provide a function that allows calls to be recorded, including video calls. The laws regarding notice and other requirements of recorded conversations vary by state. We do not warrant that the function complies with any such requirements, and you and your Customers and their End Users are solely responsible for compliance with all applicable laws and regulations when using this feature.

i. Voice Recording: When using voice Services, an End User who chooses to record a call must give the other participants on the call verbal notification that the call is being recorded. If an End User does not consent to being recorded, the End User must leave the call.

ii. Video Recording: When using video Services, End Users will receive notification (visual or otherwise) when recording is enabled. If an End User does not consent to being recorded, the End User must choose to leave the video call.

g. Account Data Retention: We, and our third party providers, reserve the right to delete your Account Data (including but not limited to, voicemail, call detail records, faxes, data, or files) or other information that is stored through the Services and/or our third party service providers servers or systems in accordance with our storage policies located at https://docs.skyswitch.com/en/articles/584-call-records-call-trace-record-retrieval-availability for the associated service. You agree that we do not have any liability as a result of the loss, access or removal of any such Account Data or other information pursuant to these policies. We advise you to store your Account Data with a third-party storage provider if you foresee the need for historical data.

h. Additional Services: Your use of the Service may involve accessing third party services or purchasing third party goods. Your use of any third-party services or goods may be subject to separate terms, and we disclaim all liability or responsibility for those services or goods.

i. No High-Risk Use: The Service is not designed for and should not be made available for use in hazardous environments that require fail-safe controls, including without limitation the operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems (“Hazard Environments”). You and your Customers may not use or sell the Service to any End User in any Hazard Environment.

j. Use by Children Prohibited: Video Services may not be used by anyone under the age of eighteen (18) unless you have entered into a separate agreement with an educational facility. You, your Customers and their End Users under the age of eighteen (18) may not create accounts or use the Service without a separate agreement. We may terminate your access to the video Service without warning if we believe that you, your Customer(s) and/or End User(s) are under the age of eighteen (18) or are otherwise ineligible to use the Service.

 

4. RESELLER OBLIGATIONS

a. General Obligations: You are solely responsible for performing all tasks necessary and appropriate to provide and maintain the Services for your Customers and their End Users that are not specifically identified in the Agreement as being our responsibility. Your responsibilities include, but are not limited to: (i) procuring your own internet connection and access, which may be required to use the Services; (ii) marketing the Services; (iii) connecting Customers and their End Users to the Services provided by you; (iv) servicing your Customers and their End Users, including but not limited to the provision of technical support in their use of the Services; (v) installing and managing all Customer and End User equipment, including, without limitation, ATAs, IADs, software-based SIP clients, and other VoIP or network-specific hardware; (vi) providing Customers with relevant legal and regulatory disclosures and Use Policies; (vii) entering into appropriate contractual arrangements with all Customers, which shall include terms and conditions related to the Customers use of the Services that are at least as stringent as those contained in the Agreement, which you shall require all Customers to agree to prior to making the Services available; (viii) billing and collecting payments from Customers, agents or subcontractors (if applicable); (ix) managing the Software in support of the Services you have sold or agreed to provide to your Customers, and; (x) complying with all legal, accounting and regulatory obligations, including but not limited to local, state and federal regulatory obligations and filings, and the payment of taxes and regulatory fees, associated with the products and services you provide to your Customers and their End Users.

b. Support: You are solely responsible for providing support to your Customers and their End Users. Do not direct Customers to contact us for support, as we are not responsible for providing support services to them. If a Customer contacts us directly, we will redirect them to you and notify you of the attempted contact. If you request that we communicate directly with your Customer, professional service fees may apply for the time spent.

c. Provisioning Service: You are solely responsible for provisioning all Services on behalf of or for your Customer. We are not responsible for any errors or improperly provisioned Services, including improperly set taxes, fees, and surcharges. If you incorrectly provision a Service, you will be responsible for all related fees, charges and expenses until the error is corrected.

d. Know Your Customer: You must engage in due diligence when entering into new service agreements, or renewing existing agreements, with your Customers to ensure that the Network and Services are not used to originate illegal traffic including, without limitation, by: (i) collecting the legal business name, place of business formation (if applicable), proof of good standing in the place of formation not older than six months prior to the date of the agreement or renewal, address, telephone number, and description of the type of goods or services offered by the Customer, (ii) collecting supporting records to verify the information collected (e.g., government record, government identification, lease, utility statement, search result from a government website, or a report from a private database that validates information about companies for the purpose of providing fraud detection, risk management, credit check, or similar services), (iii) confirming that the individual acting on behalf of the Customer has the authority to do so, and (iv) confirming that the Customer has not been the subject of an adverse final determination in an adjudicatory proceeding brought by either a private or government party, including any FCC order, court order, or other similar determination for violating any state or federal laws or FCC rules pertaining to robocalls. You shall also continue to monitor the actions of all of your Customers throughout the Term to ensure that no Customers originate illegal traffic. Subject to Section 14 (Indemnification), you shall indemnify us from any and all Losses resulting from illegal traffic originating from any of your Customers. Any breach of this Section will be deemed a material breach pursuant to Section 8(c).

e. Cooperation with Traceback Requests: While acting as an upstream provider originating traffic (hereinafter referred to as an “Originating Provider”) or passing traffic through (hereinafter referred to as a “Transit Provider”), you shall respond in good faith within twenty-four (24) hours (or any earlier deadline specified in the Traceback Request) of receiving a request from a traceback administrator authorized by the Traceback Consortium for information about suspicious robocalls that have been sent to a downstream provider (each, a “Traceback Request”) without requiring a subpoena or other formal demand or request. Your response to each Traceback Request must indicate without limitation whether you are in the call path as the Originating Provider of the calls (i.e., you received the calls from your Customer) or a Transit Provider (i.e., you received the calls from another voice provider) and the source of the calls. Any breach of this Section will be deemed a material breach pursuant to Section 8(c).

f. Compliance with FCC Rules. You represent and warrant that you have or will have within sixty (60) days of signing up for Services or before Services are activated (whichever comes first) (i) a Robocall Mitigation Database (“RMD”) Filer Number, (ii) an FCC Registration Number, (iii) a certified filing and robocall mitigation compliance plan filed in the RMD, and (iv) have not been subject to any FCC action or order removing you from the RMD. Any breach of this Section will be deemed a material breach pursuant to Section 8(c).

 

5. EQUIPMENT

a. General; Shipping: You may purchase or rent Equipment from us for use with the Services within manufacturer guidelines and applicable laws. You will pay all shipping and related charges unless otherwise agreed upon in writing. Equipment purchased or rented through us may be subject to additional terms and conditions, and you agree to be bound by such terms and conditions, including any third-party terms and conditions. You shall be deemed the importer of Equipment for all purposes, and shall be liable for any applicable customs, import/export duties, clearance charges and other Taxes and Fees (including VAT), in connection with international shipments.

b. Warranty: We will pass through any warranties expressly authorized by the original supplier.

c. Lost, Stolen, Altered or Broken Equipment: You may not modify the Equipment in any manner without our express written consent and may only use the Equipment in connection with the Services. You will be responsible for all lost, stolen or broken Equipment (except to the extent covered by warranty) and shall promptly notify us of any such loss or theft to prevent unauthorized use of Equipment.

d. Unsupported Devices: You shall not access or use the Services with any equipment or devices other than supported Equipment without our consent. We shall have no liability for your access or use of the Services with any equipment or device that is not supported by us, even if we have consented to your use of such device. A list of supported equipment can be found in our knowledge base a https://docs.skyswitch.com/en/articles/8-phone-model-support.

 

6. PAYMENT

a. Prices and Charges:

i. Unless otherwise specified, all prices are identified in US dollars as set forth in Schedule A of the Order. Schedule A may be updated to include new Services and associated rates for new Services. If you use a Service where a particular rate for the Service is not identified in Schedule A, the rate applicable to that Service will be as stated on your monthly invoice.

ii. You will be liable for all charges resulting from use of the Services on your account. No set-off, deduction or cross-collateralization will be permitted.

iii. All professional services will be billed at prevailing professional service rates in one (1) hour blocks, unless otherwise specified.

iv. We reserve the right to change pricing. We will provide you with at least twenty-five (25) days prior notice to any rate changes unless such rate change is made effective to us in a shorter notice period by an upstream service provider, in which case we will provide as much notice as practicable. You will have an opportunity to terminate the applicable Service if we change the price of a Service to which you are subscribed.

v. If changes in applicable law, regulation, rule or order materially affect delivery of a Service, the Parties will negotiate appropriate changes to the Agreement. If the Parties cannot reach agreement within thirty (30) days after our notice to you requesting such a renegotiation, we may, on a prospective basis after such thirty (30) day period, pass any increased costs on to you or eliminate Services impacted by the change in law, regulation, rule, or order.

b. Billing and Payment:

i. You must provide a valid credit card, debit card or ACH authorization form (“Payment Method”), which will be kept on file by us. All amounts due to us will be collected based on your selected Payment Method. You shall receive an invoice or statement of account detailing the amounts charged on each billing cycle prior to any charges collected by us. Ending our authorization to charge a Payment Method does not relieve you of your obligation to pay outstanding charges.

ii. Amounts not paid due to bank decline or otherwise shall be due and payable one (1) business day after you have been notified of the declined transaction. A processing fee of seventy-five dollars ($75) will be assessed for any payment transaction that is declined. If your debit card or ACH payment is declined three (3) times, you will be required to provide us with a valid credit card for all future payments. Any amount not paid by the due date shall be considered past due and subject to a late payment charge equal to the lesser of (1) one and a half percent (1.5%) per month compounded, or (2) the maximum amount allowed by law. You agree that in the event we are unable to collect amounts owed for the Services, we may take any other steps we deem necessary to collect such fees and that you will be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs and attorneys' fees.

iii. Any setup or onboarding fees for new accounts or additional services will be invoiced upon execution of an agreement or add on order and will be due and payable immediately.

c. Taxes: In addition to payment for the rates and charges for Service(s), you are responsible for payment of all Taxes and surcharges. however designated, imposed on or based upon the provision, sale or use of the Services.

d. Tax Exemption: If you claim that your purchase of the Services is subject to tax exemption, every calendar year, you must furnish us with the proper tax exemption certificate as authorized by the appropriate taxing authority or required by statute or regulation. If applicable, we will not collect such tax amounts from you beginning on the date such certificate is provided. However, if we do not collect such amounts in reliance on your tax exemption certificate, which certificate is later determined to be inadequate, then, as between us and you, you shall be liable for such uncollected amounts and for all interest, penalties and additions to tax which are determined to be due with respect to such uncollected amounts. We will not issue any credit(s) for applicable taxes, tax-like charges and surcharges assessed prior to our receipt of your evidence of exemption. Notwithstanding any representation you make that any exemption application is pending, no exemption shall be available to you until you present us with the valid certificate(s).

e. Governmental Charges: Governmental Charges are Taxes and Fees we are permitted or required to collect in support of statutory or regulatory programs in connection with providing Services (“Governmental Charges”). These charges include, but are not limited to, regulatory compliance, Telecommunication Relay Service (“TRS”), E911, access, Communications Assistance for Law Enforcement Act (“CALEA”), Universal Service Fund (“USF”) and other similar costs. If the fees are adjusted, we will provide notice of any such change. Any change shall become effective beginning on the first day of the next calendar month following notice to you.

f. Enforcement Violations: Violations of any policies, including without limitation messaging policies, implemented by us or our third party providers may result in affirmative action .You must promptly reimburse us for any fines, costs or expenses we incur as a result of violations by you, your Customers or their End Users.

g. Billing Disputes: If you reasonably and in good faith dispute any portion of your monthly invoice or statement of account (as applicable), you must provide written notice to us within fourteen (14) days of the billing date, identifying the reason for the dispute and the amount being disputed. Your dispute as to any portion of fees due to us will not excuse your obligation to pay the undisputed portion of the monthly fees. Upon resolution in our favor, you must pay any unpaid amounts within ten (10) days, including any late payment fee.

h. Security Deposit: In the event that your payment method on file is declined three (3) or more times during any ninety (90) day period, we may, at our option, require you to provide a security deposit in an amount sufficient to meet sixty (60) days’ worth of service fees. If we collect a security deposit, we may draw upon the deposit at any time to recover any amounts due and unpaid, and upon notice to you, you shall immediately replenish the deposit to its original value. We do not waive any rights or remedies by drawing upon the deposit to recover overdue or unpaid amounts. If we draw upon the deposit, we may suspend the Services until you replenish the deposit to its original value. If you fail to provide or replenish such security deposit, we may immediately suspend the Services and/or terminate the Agreement without further notice or demand.

 

7. TERM AND AUTOMATIC RENEWAL

The Agreement will commence as of the effective date of the most recent Order, and, unless terminated earlier as set forth herein, will continue for the term set forth on the Order (“Initial Term”). The Agreement will automatically renew for additional one (1) year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless a party gives the other party written notice of termination of the Agreement at least sixty (60) days prior to the end of the Term.

 

8. SUSPENSION/TERMINATION

a. Termination or Suspension with Notice:

i. Subject to Section 6(g) (Billing Disputes), you shall have ten (10) days from the date of any default notice in which to cure a default in payment. If payment in full is not received by us on or before the tenth (10th) day, we have the right to suspend Service(s) including your access to the portal, without liability until such time that you have paid all charges, including any late payment charge.

ii. In the event that you do not bring your account current within thirty (30) days from the date of suspension as set forth in Section 8(a)(i), we may terminate the Agreement upon five (5) days prior written notice.

iii. We may, at our discretion, terminate the Agreement if the payment method on file is declined three (3) or more times during any ninety (90) day period and you do not provide a security deposit within five (5) days after receiving a request from us.

iv. If Services are terminated due to nonpayment, any unposted credits or prepayments will be applied to outstanding amounts owed.

b. Termination or Suspension without Notice: We have the right to terminate or suspend one or more Services without notice to you, if in our opinion; (i) the interruption of the Service(s) is necessary to prevent or protect against fraud or otherwise protect our or any of our personnel, facilities, or network; (ii) we have reasonable evidence of illegal, improper or unauthorized use of the Services, including without limitation the origination of suspected illegal traffic by you, your Customer, or any End User; (iii) we are required by legal or regulatory authority as set forth in Section 18(k) (Regulatory and Legal Changes), (iv) your insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver or other similar event. Termination pursuant to this Section will be deemed a material breach pursuant to Section 8(c).

c. Termination for Cause: Either Party may terminate the Agreement or a Service for Cause. Except for your failure to pay as specifically provided for in Section 8(a), “Cause” shall mean a breach of any material term of the Agreement and such breach is not cured within thirty (30) days after delivery of written notice from the non-breaching party. We shall have the right to terminate the Agreement without adhering to the foregoing cure period.

d. Effect of Termination:

i. If you terminate the Agreement in its entirety due to our material breach under Section 8(c) (Termination for Cause), you will be liable for all fees and charges for all Services (including usage) up through and including the date of termination of the Service(s).

ii. If the Agreement or any Services are terminated for any reason other than as a result of a material breach by us or as set forth in Section 18(k) (Regulatory and Legal Changes), you must, to the extent permitted by applicable law and without limiting any of our other rights or remedies, pay within ten (10) calendar days of such termination all amounts that have accrued prior to such termination, as well as all sums remaining unpaid (including but not limited to monthly minimum commitments) for the Services for the remainder of the then-current Term plus applicable Taxes and Fees.

e. Data Retention Upon Suspension/Termination:

i. In the event of suspension, we will not take any action to intentionally erase any of your Account Data. During suspension, you will not have access to your Account Data.

ii. After termination, we will retain Account Data for thirty (30) days. You may request retrieval by submitting a support ticket; professional service fees may apply.

iii. Except as provided above, we have no obligation to store Account Data during suspension or termination nor allow its retrieval.

9. CONFIDENTIALITY

a. Obligations: Commencing on the Effective Date, and continuing for a period of three (3) years following the termination or expiration of the Agreement, each Party shall protect as confidential, and shall not disclose to any third party, any Confidential Information received from the disclosing Party or otherwise discovered by the receiving Party during the Term of the Agreement, including, but not limited to, the terms of the Terms of Service, Amendments, Service Level Agreements, all other documentation that is made part of the Agreement, all pricing, network or other designs, or other information that is marked confidential or bears a marking of like import, or that the disclosing Party states (orally or in writing) is confidential or which under the circumstances surrounding the disclosure, the receiving Party knows or should know is treated as confidential by the disclosing Party, as well as any information relating to the disclosing Party’s technology, business affairs, and marketing or sales plans (collectively the “Confidential Information”). The Parties shall use Confidential Information only for the purpose of the Agreement. The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (i) is in the possession of the receiving Party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (ii) is or becomes publicly known through no wrongful act or omission of the receiving Party; (iii) is received, without restriction, from a third party free to disclose it without obligation to the disclosing Party; (iv) is developed, independently, by the receiving Party without reference to the Confidential Information, or (v) is required to be disclosed by law, regulation, court or governmental order.

b. Return/Destruction of Confidential Information: Confidential Information, including copies, are property of the disclosing Party. The receiving Party must, within twenty (20) days of a written request by the disclosing Party, return all Confidential Information (or any designated portion thereof), including all copies thereof, to the disclosing Party or if directed by the disclosing Party, destroy such Confidential Information. The receiving Party must also certify in writing that it has satisfied its obligations under this Section.

 

10. INTELLECTUAL PROPERTY

a. Limited License:

i. Subject to your compliance with the terms of the Agreement, we grant you and your Customers, a limited revocable, non-exclusive, non-transferable (except as permitted under the Agreement), non-sublicensable license to use the Software provided as part of the Services to the extent reasonably required to access and use the Services during the Term.

ii. You shall not, and shall not allow your Customers or their End Users to:

1. 1. sublicense, resell, distribute or assign your rights under the license granted pursuant to the Agreement to any other person or entity;
   2. modify, adapt or create derivative works of the Software or any associated documentation;
   3. reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Software;
   4. use the Software for infringement analysis, benchmarking, or for any purpose other than as necessary to use the Services;
   5. create any competing Software or Services; or
   6. remove any copyright or other proprietary or confidential notices on any Software or Services.

b. IP Rights:

i. IP Rights: Except as expressly provided in the Terms of Service, the limited license granted under Section 10(a) (Limited License) does not transfer ownership or any other rights in the Services, related materials, work product developed in connection with any professional services, or any intellectual property. No IP Rights or licenses are granted, transferred, or assigned to you, your Customers, or any other party by implication, estoppel, or otherwise. All rights not expressly granted herein are reserved and retained by us and our licensors. You will not allow access to IP, including without limitation, Software and systems, by anyone other than your employees and subcontractors who (a) are bound by law or written agreement to comply with the Agreement with respect to IP and Confidential Information, and (b) require such access to support your permitted use. You will return all IP to us at the conclusion of the applicable Service and will cooperate with any reasonable requests to confirm our ownership.

ii. Third Party Rights: The Software and Services may comprise or incorporate services, software, technology or products developed or provided by third parties, including open-source software or code. You acknowledge that misuse of the Services may violate third-party IP Rights

iii. Reseller Rights: As between the Parties, you retain title to all IP Rights that are owned by you. To the extent reasonably required for the provision of the Services, you grant to us a limited, non-exclusive, royalty-free, license to use your IP Rights. You must provide all required notices and obtain all licenses, consents, authorizations, or other approvals related to the use, reproduction, transmission, or receipt of any Customer Content that includes personal or Confidential Information or incorporates any third-party IP Rights.

iv. Use of Marks: You shall not use any service mark or trademark of ours, without our prior written consent. We shall have the right to disclose your name and trademark in connection with any advertising, promotion, press release or publication.

 

11. GOVERNMENTAL USERS

If you (or your Customers and/or End Users) are an agency, department, or other entity of any government, then any use, modification, duplication, reproduction, release, performance, display, transfer or disclosure of the Services and accompanying documentation shall be governed solely by the Agreement. Any other use is prohibited, and no other rights are granted.

 

12. DISCLAIMER OF WARRANTY

SERVICES ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS. WE DO NOT WARRANT THAT THE SERVICE(S) WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF QUALITY OR LOSS OF CONTENT, DATA, OR INFORMATION, EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT. IN ADDITION, WE MAKE NO OTHER REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE(S), RELATED PRODUCTS, EQUIPMENT, SOFTWARE OR DOCUMENTATION AND WE SPECIFICALLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. BROADBAND SPEED CLAIM(S) REPRESENT MAXIMUM DOWNSTREAM AND/OR UPSTREAM CAPABILITIES WHICH MAY VARY AND ARE NOT GUARANTEED. FACTORS INCLUDING LINE QUALITY AND CUSTOMER’S DISTANCE FROM THE EXCHANGE MAY LIMIT AVAILABLE BANDWIDTH

13. LIMITATION OF LIABILITY

a. Excluded Damages: TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, DIRECT AND INDIRECT SUBSIDIARIES BE LIABLE FOR (1) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, REPUTATIONAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND; (2) COSTS OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (3) LOSS OF USE, LOSS OR CORRUPTION OF DATA; AND/OR (4) LOSS OF BUSINESS OPPORTUNITIES, PROFITS, GOODWILL, OR SAVINGS, WHETHER IN ANY OF THE FOREGOING, ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. NEITHER PARTY WILL BE LIABLE FOR ACTIONS REASONABLY TAKEN TO COMPLY WITH LAW.

b. Direct Damages: EXCEPT AS SET FORTH HEREIN, OUR TOTAL CUMULATIVE LIABILITY UNDER THE AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THE AGREEMENT FOR THE SIX (6) MONTH PERIOD PRIOR TO THE MOST RECENT CAUSE OF ACTION. THIS SECTION WILL NOT APPLY TO: (1) YOUR PAYMENT OBLIGATIONS; (2) EITHER PARTY’S LIABILITY AS SET FORTH IN THIS SECTION 13; (3) YOUR INDEMNIFICATION OBLIGATIONS; (4) EITHER PARTY’S LIABILITY RESULTING FROM GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT; OR (5) YOUR LIABILITY RESULTING FROM USE OF THE SERVICES IN BREACH OF THE AGREEMENT. NOTHING IN THE AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED, OR EXCLUDED PURSUANT TO APPLICABLE LAW.

c. Third Party Providers: WE SHALL HAVE NO LIABILITY TO YOU WHATSOEVER FOR THE FAILURE OF OUR THIRD-PARTY PROVIDER(S) TO RENDER SERVICES, OR DUE TO DEFECTS IN THE QUALITY OF SERVICE PROVIDED BY OUR THIRD-PARTY PROVIDER(S). SERVICES RENDERED BY OUR THIRD-PARTY PROVIDERS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. IF OUR THIRD-PARTY PROVIDER(S) CEASE PROVIDING SERVICES TO US OR REVISE THEIR TERMS OF SERVICE, THEN ANY AND ALL OF OUR OBLIGATIONS HEREUNDER MAY TERMINATE AND WE SHALL INCUR NO ASSOCIATED LIABILITY TO YOU.

 

14. INDEMNIFICATION

a. By Reseller: You shall indemnify, defend and hold us and our respective Affiliates, direct and indirect subsidiaries, directors, officers, agents, suppliers, employees, successors and assigns harmless from and against any Losses arising out of or relating to: (i) your or your Customers’ use of Services; (ii) Customer Content and/or any third-party information used, maintained or stored in connection with the Services; (iii) your breach of any representation, covenant or warranty contained herein; (iv) violation of any law by you or any third party arising out of or relating to your actions; or (v) the modification or unauthorized use by you or your Customers’ or distribution of the Services or IP.

b. By Company: Subject to the limitations set forth in Section 13 (Limitation of Liability), we shall, during the Term of the Agreement, defend and indemnify, at our expense, any third-party claim or suit brought against you alleging that the Software infringes a U.S. trademark, patent or copyright and shall pay all costs and damages finally awarded. If use of the Software under the terms of the Agreement is, or in our opinion is likely to be, enjoined we will, at our sole option and expense, obtain for you the right to continue using the Software, or replace or modify the Software so that it becomes non-infringing. We shall have no liability for actual or alleged infringement based upon the use of the Software in combination with other products, devices or software not furnished by us, use not in compliance with our specifications, or modifications made to the Software if the claim or suit of infringement would not have occurred but for such combination or modifications of the Software. We disclaim all other liability for infringement of any patent, trade secret and copyright and other intellectual property rights including any incidental, special, consequential, and punitive damages. With respect to any claims or actions relating to infringement of intellectual property rights, the remedies set forth in this Section shall be the sole and exclusive remedies to which you are entitled.

c. Defense and Indemnification Procedures: Any Party seeking defense or indemnification (the “Indemnified Party”) must provide the Party from which it seeks such indemnification or defense (the “Indemnifying Party”) with the following: (i) prompt written notice of the third-party claim, (ii) sole control over the defense and settlement of the third-party claim, and (iii) reasonable information, cooperation, and assistance in connection with the defense and settlement of the third-party claim. The Indemnified Party’s failure to comply with the foregoing obligations will not relieve the Indemnifying Party of its defense or indemnification obligations under this Section 14 (Indemnification), except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party will have the right to participate at its own expense in the defense of such third-party claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Party’s express written consent (which such consent may not be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Party by each party bringing such third-party claim.

 

15. DISPUTE RESOLUTION

a. Good Faith Attempt to Settle Disputes: In the event of any dispute or claim arising out of or relating to the Agreement (a “Dispute”), each Party will appoint a duly authorized representative who will confer with the other Party before either Party brings legal action to make a reasonable and good faith effort to settle or otherwise resolve such Dispute. If the Parties are unable to resolve the dispute within thirty (30) days (or as extended upon the mutual agreement of both Parties) of initial notification of the Dispute, either Party may invoke arbitration pursuant to Section 15(b) below.

b. Arbitration: Any dispute or claim between the Parties, including those arising out of or relating to the Service, will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in the County of Montgomery, State of Pennsylvania. Each Party shall bear its own costs and expenses, including without limitation attorney’s fees and expenses related to the presentation of evidence, witnesses and document production, and an equal share of the arbitrator’s and administrative fees of the arbitration. The arbitrator’s decision will follow the plain meaning of the relevant documents and will be final and binding. Without limiting the foregoing, the Parties agree that no arbitrator has the authority to: (i) award relief in excess of what the Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrator may award relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party's individual claim. All claims shall be arbitrated individually. Unless the Parties agree otherwise, the arbitrator may not consolidate more than one claim and may not otherwise preside over any form of a representative or class proceeding. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.

c. Equitable Relief: Any breach of either Party’s IP Rights or confidentiality obligations will cause that Party irreparable harm for which monetary damages will be inadequate and such Party may, in addition to other remedies available at law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement, in addition to any other relief to which such Party may be entitled under applicable law.

 

16. ON-SITE SERVICES

If our personnel perform Services on your premises, your Customers’ premises or the premises of any End User: (i) you will provide all facilities, access, furnishings, equipment, software, documentation, passwords, and data necessary to perform the Services; (ii) you will maintain adequate security, safety, utilities, and environmental standards, consistent with industry standards and its regular practices; (iii) while on the premises, our personnel will comply with any rules and regulations consistently applied and communicated to us in advance; (iv) except as otherwise provided, you will reimburse us for our reasonable out-of-pocket expenses incurred in connection with the Services, including but not limited to travel costs.

 

17. INSURANCE

You are solely responsible for maintaining and ensuring that you will maintain insurance coverage that is usual, reasonable, and customary for the service you are providing, including without limitation automobile, general liability and workers compensation, as applicable. On written request, you will furnish certificates to us with evidence of the foregoing insurance.

 

18. MISCELLANEOUS

a. Force Majeure: If either Party’s performance under the Agreement or any obligation thereunder (excluding your obligation of payment) is prevented, restricted or interfered with by causes beyond its reasonable control including, but not limited to, acts of God, epidemics, pandemics, quarantines, public health emergencies, fire, explosion, vandalism, cable cut by a third party, earthquake, storm or other similar occurrence, any law, order, regulation, direction, action or request of the United States government, or state or local governments, or of any department, agency, commission, court, bureau, corporation or other instrumentality of any such governments, or of any civil or military authority, or by national emergency, insurrection, riot, terrorism, war, accident, strike, lockout or work stoppage or other labor difficulties, or supplier failure, shortage, breach or delay, then the affected Party shall be excused from such performance on a day-to-day basis to the extent of such restriction or interference. The affected Party shall use reasonable efforts under the circumstances to avoid or remove such causes of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes are removed or cease.

b. Notices: Unless otherwise advised, all notices hereunder shall be in writing and either transmitted via overnight courier, electronic mail, facsimile, hand delivery, certified or registered mail, postage prepaid and return receipt requested to the Parties at the addresses set forth on the Order. Notices shall be deemed to have been given when received (or delivery refused). Either Party may change its address by providing notice of such address change to the other Party in the manner set forth above.

c. Independent Contractors: The Parties are independent contractors, and nothing herein will be construed otherwise. Each Party will determine, supervise, and manage the method, details, and means of performing its obligations. Except as agreed in writing, neither Party will act or represent itself, directly or by implication, as the other Party’s agent. Each Party will be solely responsible for the withholding and payment of all applicable federal, state, and local taxes for its own employees.

d. Exclusivity and Competition: Nothing herein shall prohibit us from providing services similar or identical to the Services provided to you to any other entity or person.

e. Severability; No Waiver: If any provision under the Agreement is declared or held to be invalid, illegal or unenforceable, all of the foregoing shall be revised only to the extent necessary to make such provision(s) legal and enforceable, or if impossible, the unaffected portions of either or both shall remain in full force and effect, provided that the modification is consistent with the original intent.

f. Assignment: Neither Party may assign the Agreement or any of its rights hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, except that (i) we may assign our rights and/or obligations under the Agreement, (1) to any, Affiliate or subsidiary, (2) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all of its assets, or (3) for purposes of financing; and (ii) you may assign your rights and/or obligations under the Agreement, (1) to your Affiliate or subsidiaries, or (2) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all of its assets, provided that any assignment by you pursuant to this exception is subject to the following conditions: (a) the proposed assignee satisfies our then current credit and deposit standards; (b) you have fully paid for all Services through the date of the assignment; (c) the proposed assignee agrees in writing to be bound by all provisions of the Agreement; and (d) the proposed assignee is not a competitor of Company. Any assignment in violation of this Section is null and void.

g. Third-Party Beneficiaries: The Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to the Agreement. Notwithstanding the foregoing, our underlying service provider(s) may be third-party beneficiaries for sole purpose of enforcing any terms of the Agreement that specifically apply to such underlying service provider.

h. Internal Customer Activities: 

i. We have no obligation to assist in or otherwise mediate in the event of any dispute between your representatives or you and any third party with respect to ownership or control of any account or Account Data. All information in our records regarding the ownership or control of an account or Account Data, Services ordered, and numbers assigned to an account will be definitive and controlling for purposes of administering the account. In the event of any such dispute, we may take any course of action that we deem appropriate based on the information available, which includes declining to take any course of action.

ii. We may access your account and related data as required to provide the Services. However, we have no obligation to access your account, Account Data or any Customer Content for any other purposes. Services do not include or consist of any investigation, review, verification, production, compilation, modification, or other similar services for any Account Data or Customer Content. Services do not include the provision of any legal, accounting, or other professional services.

i. Governing Law; Venue: Subject to Section 15 (Dispute Resolution), all matters arising out of and relating to the Agreement, any applicable Schedules and attachments, and all additional documentation shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania without regard to its choice of law principles. Any action that is or may be commenced by any Party pertaining to the Agreement and the subject matter thereof, shall be commenced in a federal or state court located in Montgomery County, Pennsylvania. The Parties hereby consent to the jurisdiction of such court, waiving objection to forum non conveniens and personal jurisdiction.

j. Export Control: Any services, products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export laws and regulations. You shall not use, distribute, transfer, or transmit the services, products, software, or technical information (even if incorporated into other products) except in compliance with U.S. and other applicable export regulations.

k. Regulatory and Legal Changes: If a change in law, regulation or industry standards prevents or significantly impacts our ability to provide Services, we may modify the Agreement or terminate the affected Services.

l. Laws, Regulations, Permits: Each Party will comply, at its own expense, with all applicable laws, rules, regulations, and policies related to the Services. Each Party represents that it has or will obtain all consents, licenses, permits and certificates required to receive or perform the Services. If we reasonably believe that continued performance of the Services would cause a violation of any applicable law, court order or regulatory agency rule, we may cease performing the applicable Service(s) to the extent reasonably required to correct or avoid the violation. You are responsible for being informed on all legal requirements related to the Services. For clarity, you are solely responsible for compliance related to the manner in which you, your Customers or your End Users choose to use the Service, including transfer and processing of content and the provision of content to any users.

m. Non-Disparagement: You agree to take no action which is intended, or would reasonably be expected, to: (i) harm us or our reputation, or (ii) lead to unwanted or unfavorable publicity for us, including, without limitation, any actions on the internet or any online forums, blogs, or Facebook, X or LinkedIn posts, or any other similar online venues (hereinafter “Online Forums”). In addition, you may not set up or in any way administer any Online Forums that relate, directly or indirectly, to us or any other of our third-party providers or customers without our express prior written consent.

n. Survival: The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of the Agreement will survive expiration or termination, including without limitation payment obligations, warranty disclaimers, indemnities, limitations of liability, confidentiality, definitions and miscellaneous.

o. Non-Solicitation: During the Term of the Agreement and for a period of twelve (12) months from termination hereof, neither Party shall hire or solicit for employment any employee or contractor of the other Party without the prior written consent of the other Party prior to making an offer of employment; provided however, that nothing in the Agreement shall be deemed to prohibit: (i) any general solicitation for employment not specifically directed at employees or contractors of the other Party, or (ii) the employment of any person who has been terminated by the other Party. Notwithstanding the foregoing, nothing in this Section shall relieve either Party’s employee of any duty or obligation arising under a non-compete agreement.

p. Order of Precedence: In the event of any conflict between the documents comprising the Agreement, precedence will be given to the documents in the following descending order: (i) the Order Form; (ii) the Use Policies; (iii) the Terms of Service; and (iv) and any other document incorporated by reference into the Agreement which governs the Services. No preprinted or form terms on a purchase order will apply.

q. Entire Agreement: The Agreement, together with any attachment(s) or executed amendments, constitutes the Parties’ entire understanding, and supersedes any prior written or oral agreements or understandings, related to the subject matter hereof. The Agreement is not enforceable unless properly executed by both Parties. The Parties’ signatures on the Order or use of the Service shall constitute execution of the Agreement. We may modify all or any part of the Agreement by posting the updated terms on the website at www.skyswitch.com/legal and making you aware of the change in terms. This does not include changes to the Pricing Schedule which may be modified pursuant to Section 6(a) of the Terms of Service. If you do not accept the changes to the Agreement, you will have the opportunity to terminate the Services. If you do not elect to terminate the Services, such changes will become binding on you. Such amended Agreement will supersede all previously agreed to electronic and written terms of service, attachments, or other documentation.