Legal Policies and Terms of Service
Master Services Agreement
The content of this MSA may be updated from time to time and such updates will be posted to Net10’s web site at https://net10.net/terms
The content of this MSA was last updated December 20, 2023 and the version of this document is 1.1a.
WHEREAS, Client wishes to engage Net10 to perform certain services and to create certain deliverables for certain fees as more particularly described in this Agreement and the Exhibits thereto, and Net10 desires to accept association with Client in such capacity;
NOW, THEREFORE, in consideration of the mutual covenants and promises hereinabove and hereinafter set forth, and for such other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties hereto, the Parties do hereby agree as follows:
The Parties indicate their acceptance of the terms and conditions of this MSA by signature of the Client SOF. In lieu of signature on the Client SOF, Client also acknowledges acceptance of the terms and conditions of this MSA by utilizing Net10 services. All services provided by Net10 are subject to the terms of this MSA unless expressly agreed upon, in advance, in writing, by both Net10 and Client.
- “Net10 Infrastructure” means the computer equipment and associated peripherals and infrastructure owned or leased by Net10 and used from time to time by Net10 to perform and/or deliver the Services and fulfill its obligations under this Agreement.
- “Pass Through” means Charges to be paid by Net10 to a third party as provided in the Charges Section that are listed in the applicable SOF or signed quotation.
- “Supported Hardware” means the hardware (Client, Net10, or third party) that is expressly defined in a SOF as being supported under the applicable SOF by Net10.
- “Supported Software” means the software (Client, Net10, or third party) that is expressly defined in a SOF as being supported under the applicable SOF by Net10.
- “Effective Date” means the date that this MSA becomes effective. The Effective Date shall be the date of the last signature on this agreement, or in the case of this agreement being incorporated by a Service Order Form (“SOF”), the date of the last signature on the SOF.
- Performance of Services. Net10 will perform certain services and/or create and deliver certain deliverables for certain fees as more particularly described in Service Order Forms (each a “SOF” and collectively “SOFs”) which will be entered into from time to time, attached hereto and incorporated herewith upon execution by Net10 and Client (the contents of such SOFs, and any amendments or modifications thereto, shall be deemed to be the “Services”). For mutual convenience of Net10 and Client, Net10 may accept Client’s signature on a Net10-supplied quotation in lieu of a formal SOF. Such signed quotation shall be treated as an SOF under this agreement. Each SOF will contain the work obligations of Net10 and Client for the specific work to be performed under the SOF, including procurement of resources, due dates, major milestones, and optionally a Service Level Agreement (“SLA”). Each SOF will be made an exhibit of this Agreement and will specifically reference this Agreement and will be made a part hereof. Such Services shall be performed by Net10 in a professional and workmanlike manner in accordance with the requirements of this Agreement and the applicable SOF in all material respects and in accordance with any applicable commercial standards generally observed in the industry for similar professional services.
- Substitutions, Additions, Deletions. If, under any SOF, Client requests a substitution, addition to, or deletion of any services or products of a third party, such that an additional cost is incurred, Client shall be solely responsible for all such costs incurred by such modification. If, after receiving Client’s request for a substation, addition to, or deletion of any third party service or product, Net10 advises Client that any such substation or addition of products or services will have an adverse impact on Net10’s ability to provide the Services, and Client nevertheless directs Net10 to effect such substation or addition, Net10 will be relieved of any inability to provide any of the affected services to the extent such action affects Net10’s ability to fulfill them.
- New Services. During the Term (defined in Section 14, below), Client may request Net10 to perform services which are not included in the Services provided that such services are of a type that Net10 provides to its other clients in the ordinary course of Net10’s business. Net10 will provide to Client a proposal for such new services, and if accepted by Client, the Parties will incorporate such accepted proposal into a SOF, which will be executed by the Parties once the new terms for the new services are fully negotiated. Client and Net10 agree that for purposes of each SOF, scanned versions of the SOFs, including the signatures contained on the SOFs, shall be deemed to be and shall have the same force and effect as original documents and signatures under this Agreement.
- Security. Net10 agrees to adhere to the security standards (if any) described in each SOF with respect to Client’s data. In the event that Client requests additional security standards during the Term such requests will be addressed following the change management procedure.
4. PAYMENT. Client will timely pay Net10 such fees and amounts as are set forth in the applicable SOF, inclusive of any Charges (the “Fees”). “Charges” means the Fees (inclusive of any recurring monthly fees) under this Agreement pursuant to each SOF and any other additional charges (including without limitation Pass Through charges and charges for Client’s use of additional resources at Net10’s standard rate as set forth in the applicable SOF).
All Fees will be invoiced by Net10, in an itemized manner, on its invoice form. All invoices and corresponding payments shall be made in U.S. Dollars. Client will pay Net10 all undisputed amounts within fifteen (15) days of the date of the applicable invoice. If Client does not pay the invoice in full and on time, Net10 reserves the right to charge interest on any amounts that are not paid by Client when due, and the entire unpaid balance will bear interest at the rate of eighteen percent (18%) per annum until paid. Client shall be deemed to have consented to all invoices, statements and other accounts rendered by Net10 to Client, and said invoices shall be binding upon Client and not subject to any objection for any reason, unless specific objection in writing, setting forth the basis thereof, is given by Client to Net10 within thirty (30) days from the date of such invoice. If Client fails to perform as agreed, Net10 may refrain from performing any further Services including suspension of access to software and service platforms provided by Net10 to Client.
5. PERMITS & APPROVALS. Each Party shall obtain at its sole cost and expense all necessary permits, regulatory approvals etc. applicable to its business and shall comply with all federal, state, and local laws and regulations applicable to its performance of its obligations under this Agreement.
6. CONFIDENTIALITY. Each Party shall hold in trust and confidence for the other Party all of the information regarding the other party’s businesses, products, services, Clients, technologies, methodologies, and processes (the “Confidential Information”) that is disclosed by or obtained from such Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) during the Term of this Agreement. Each Receiving Party shall restrict access to the Disclosing Party’s Confidential Information to only such of its employees and subcontractors who: (i) require such Confidential Information for the purpose of performing the Services; (ii) have agreed in writing with the Receiving Party to maintain the confidential nature of all information (including that of third parties) received by them in the course of their employment or engagement. The Receiving Party must not use the Confidential Information of the Disclosing Party other than in furtherance of meeting its obligations and performing under this Agreement and must protect the Confidential Information against unauthorized use or disclosure with at least the same degree of care as the Receiving Party normally exercises to protect its own information of a like character and importance, but in no event less than a reasonable degree of care of such higher standard of care as is justified by the facts and circumstances of the disclosure.
The Confidential Information expressly excludes any information that the Receiving Party can demonstrate: (i) was already known by the Receiving Party, prior to the disclosure of such information by the Disclosing Party; (ii) is obtained by the Receiving Party from a third party lawfully in possession thereof, without any obligation of confidentiality; (iii) is or becomes part of the public domain through no fault of the Receiving Party; (iv) is independently ascertained or developed by or for the Receiving Party by its employees or any third party without use of, reference to or reliance upon the Disclosing Party’s Confidential Information; or (v) is approved for public release by the written authorization of the Disclosing Party.
In the event that a Receiving Party is required by law, regulation, or court order to disclose any of the Confidential Information, the Receiving Party will promptly notify the Disclosing Party in writing prior to making any such disclosure in order to allow the Disclosing Party to seek a protective order or other appropriate remedy from the proper authority. The Receiving Party will cooperate with the Disclosing Party in seeking such order or other remedy or in defining the scope of any required disclosure. In the event that the Receiving Party is required to make a disclosure of the Disclosing Party’s Confidential Information, the Receiving Party shall limit the scope of such disclosure to include only that information which is the minimum information that the Receiving Party is legally required to disclose.
7. OWNERSHIP OF WORK PRODUCT.
- Ownership by Client; License to Net10. Client shall be the sole and exclusive owner of the software (in source and object forms), user interface designs, documentation (including electronic versions thereof), network designs, know-how, trade secrets, and any related intellectual property rights that are owned by Client as of the Effective Date of this Agreement or are developed solely by Client other than in the course of performance of its obligations under this Agreement (“Client Owned Materials”), including U.S. and foreign intellectual property rights in such Client Owned Materials. Client will not be deemed to have assigned intellectual property rights in and to the Client Owned Materials to Net10. Client hereby grants to Net10 a non-exclusive, royalty-free license to use the Client Owned Materials during the term of this Agreement, solely as necessary for the purpose of providing the Services to Client as contemplated in this Agreement and the SOF(s). Client shall maintain the Client Owned Materials as necessary to perform the Services and shall permit Net10 to retain a copy of all updates, enhancements, and improvements to all Client Owned Materials.
- Ownership by Net10; License to Client. Net10 shall be the sole and exclusive owner of the software (in source and object forms), user interface designs, documentation (including electronic versions thereof), network designs, know-how, trade secrets, and any related intellectual property rights that are owned by Net10 as of the Effective Date of this Agreement or are developed solely by Net10 (“Net10 Owned Materials”), including U.S. and foreign intellectual property rights in such Net10 Owned Materials. Net10 will not be deemed to have assigned intellectual property rights in and to the Net10 Owned Materials to Client. Except to the extent license rights are expressly granted below, neither this Agreement, nor any SOF shall be construed to grant to Client any rights in or to Net10 Owned Materials. Net10 hereby grants to Client a non-exclusive, royalty-free license to use the Net10 Owned Materials during the Term of this Agreement, solely as necessary for the purpose of receiving the Services as provided under this Agreement and the SOF(s).
- Work Product Created Under this Agreement. Any configurations or implementations of freely or commercially available software or hardware solutions made under this agreement, either by Net10 or by Client at Net10’s direction (“Work Product”), will be wholly owned by Client. In the event that particular SOF(s) call for the development of software, user interface designs, or hardware designs, such SOF will specify the ownership and rights to such materials.
8. OPEN SOURCE DISCLOSURE. Client acknowledges and agrees that in performing the Services, Net10 may utilize so-called open source software and technologies (“Open Source Products”) and Client hereby consents to such use.
9. TAXES. Client is solely responsible for the payment of all taxes on the Services or any payments due hereunder, whether to Net10 or to third parties, however designated, levied or based, but excluding any taxes levied on the income of Net10. Notwithstanding the generality of the foregoing, sales taxes that are payable with respect to Supported Hardware, Supported Software (or other goods) purchased by Client on behalf of Net10, shall be borne solely by Client.
10. REPRESENTATIONS AND WARRANTIES. Each of the Parties represents and warrants that the execution and delivery of this Agreement does not violate any law statute, or regulation known to such Party and does not breach any other material agreement or covenant to which such Party is bound.
11. DISCLAIMER OF WARRANTIES. Warranties as to service levels as well as a so-called “service level commitments”, if any, shall be set forth in a separate service level agreement (such agreement, a “Service Level Agreement”) which Client may elect to, or decline to, enter into with Net10, at its sole discretion. If Client declines to enter into such Service Level Agreement, Client acknowledges and agrees that Net10 does not assure uninterrupted or error-free operation of the Supported Software and Supported Hardware.
Client hereby acknowledges and agrees that operating computer system(s), software, or services connected to a public network, such as the Internet, involves inherent risks that in some cases cannot be avoided. These risks include, but are not limited to, security compromises, hardware damage, loss of data, and loss of communications ultimately leading to loss of revenue and/or business prosperity. While measures exist to help safeguard against such risks, no such measures are completely able to eliminate such risks. Client will not hold Net10 liable for damages resulting from such risks.
Net10 will use commercially reasonable efforts to provide accurate and helpful information and guidance to Client. However, Net10 will not be held responsible for any incorrect, misused, misinterpreted, or inappropriately applied information or advice.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR THE SERVICE LEVEL AGREEMENT (IF ANY), Net10 MAKES NO WARRANTIES OR COVENANTS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, NON-INFRINGEMENT, AND THE IMPLIED WARRANTIES OR COVENANTS OF MERCHANTIABILITY AND FITNESS FOR A PARTICULAR PURPOSES.
- Scope of Indemnity. Each Party (an “Indemnifying Party”) will indemnify and hold the other Party, and all the other Party’s officers, directors, employees, agents, successors, contractors, and permitted assigns harmless from and against any and all losses incurred by any of them and directly arising from:
- Any claims by third parties regarding infringement of a patent or copyright, trade secret, or other intellectual property right arising out of or relating to any aspect of the goods and services provided by the Indemnifying Party and/or its subcontractors. However, the Indemnifying Party will have no obligation with respect to any losses to the extent such claims (a) arise from or are in connection with infringement and/or breach of software licenses committed by an Indemnitee that are not the result of the Indemnifying Party’s failure to perform its obligations under this Agreement; or (b) arising out of or in connection with an Indemnitee’s modification of Supported Software or Supported Hardware provided by the Indemnifying Party and/or its subcontractors or an Indemnitee’s combination, operation, or use of the services, Supported Hardware, Supported Software or other resources provided by the Indemnifying Party and/or its subcontractors with devices, data, programs or other resources not furnished by, through at the specification of the Indemnifying Party or its subcontractors;
- Any Third Party Agreements (including claims arising from Net10’s exercise of its rights to terminate, modify, or change the Third Party Agreements allocable to such SOF if (x) where Net10 is the Indemnifying Party, such claims accrued on or after the SOF Effective Date (i.e., not arising or resulting from a breach by Client before such SOF Effective Date); and (y) where Client is the Indemnifying Party, such claims accrued prior to the SOF Effective Date. However the Indemnifying Party will have no obligation with respect to any losses to the extent arising out of or in connection with claims for patent or copyright infringement and/or breach of Software licenses related to the Services committed by any Indemnitee or any employee of an Indemnitee that is not the result of the Indemnifying Party’s failure to perform its obligations under this Agreement or to the extent arising out of or resulting from the Indemnitee’s failing to perform its obligations under this Agreement; or
- Claims for personal injuries, death or damage to tangible personal or real property caused by the intentional misconduct or gross negligence of the Indemnifying Party. However, the Indemnifying Party will have no obligation under this Section to the extent the same arise out of or in connection with the intentional misconduct or gross negligence of an Indemnitee or its Affiliate. “Affiliate(s)” means, with respect to a Party, any entity at any time controlling, controlled by or under common control with such Party, where such control is evidenced by processing, directly or indirectly, the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
- NOTICE AND PROCESS. If any third party shall notify an Indemnitee of a claim against it which claim may give rise to a claim for indemnification herein, then the Indemnitee (Net10 or Client, as applicable) shall notify the Indemnifying Party thereof promptly, provided, however, that no delay on the part of the Indemnitee in notifying any Indemnifying Party shall relieve the Indemnifying Party from any liability or obligation under this Section 12 unless (and then solely to the extent) the Indemnifying Party thereby is damaged. In the event any Indemnifying Party notifies the Indemnitee that it is assuming the defense thereof, (i) the Indemnifying Party will defend the Indemnitee against the matter with counsel of its choice, (ii) the Indemnitee may retain separate co-counsel at its sole cost and expense; (iii) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the matter without the written consent of the Indemnitee, which consent will not be unreasonably withheld, conditioned, or delayed. The indemnification rights of the Indemnitee for third party claims pursuant to this Section will be the sole and exclusive remedy of such Indemnitee with respect to each such third party claim.
13. LIMITATION OF LIABILITY. Client acknowledges and agrees that conducting business electronically, particularly over the Internet, is a venture involving many inherent risks. These risks include the potential for lost data and other technical issues that may result in lost sales or sales leads and ultimately a loss in business revenue. Each Party’s liability hereunder will be limited to Direct Damages incurred by such Party for each event which is the subject matter of a claim or cause of action. As used herein, the term “Direct Damages” means actual, direct damages incurred by the claiming Party which include, by way of example only, but not limitation: (i) the costs of cover incurred by Client to obtain services which are the same as or substantially similar to the Services; (ii) the costs to correct any deficiencies in the Services rendered by Net10; (iii) the costs incurred by Client to transition to another provider of information technology, information management and communication services and/or to take some or all of such functions and responsibilities in-house; and (iv) the difference in the amounts to be paid to Client hereunder and the charges to be paid to such other provider and/or the costs of providing such functions, responsibilities and tasks in-house.
IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT OR ANY SERVICE ORDER FORM (“SOF”) FOR ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, MULTIPLE OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO LOST PROFIT, LOST DATA, LOST REVENUE OR INTEREST, EVEN IF THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. THIS PROVISION INCLUDES PROPERTY DAMAGE, ECONOMIC LOSS, AND PERSONAL INJURY.
Notwithstanding anything herein to the contrary, the total liability of a Party under or in connection with this Agreement will be limited to the Fees received by Net10 in the sixty (60) days immediately preceding the date of the claim. Notwithstanding the foregoing, such limitations of liability shall not apply with respect to: (i) failure to pay Fees for the Services; or (ii) Termination Charges as set forth on any SOF.
14. TERM, TERMINATION, EFFECT OF TERMINATION.
- This Agreement shall commence on the Effective Date and thereafter shall remain in effect (unless terminated as set forth in Section 14, below) for a term of one (1) year (the “Initial Term”), provided, however, that if and to the extent that the Confidential Information disclosed by Disclosing Party under Section 5 of this Agreement contains trade secret information, Receiving Party’s duty of confidentiality shall remain in effect for the longest period of time permitted under any applicable law. After the Initial Term, the term shall be automatically extended and renewed for successive periods of one (1) year (each, a “Renewal Term”, the Initial Term and the Renewal Term are collectively referred to herein as the “Term”) unless either Party provides the other Party with prior written notice of termination at least thirty (30) days prior to the end of the then-current Term.
- Either Party may terminate this Agreement upon written notice to the other in the event of a breach of any material obligation hereunder by such other Party which is not cured within thirty (30) days of written notice of such breach having been given to such other Party. Client’s failure to timely pay Net10 shall constitute a breach of a material obligation under this Agreement.
- Either Party may terminate this Agreement immediately upon written notice if: (i) the other Party files for or has filed against a petition for bankruptcy under the Federal Bankruptcy Code and such filing or petition is not rescinded or dismissed within sixty (60) business days after such filing; (ii) the other Party ceases to carry on normal business activities for a period in excess of five (5) business days; or (iii) any of the following occurs, (1) either party makes a general assignment for the benefit of creditors; (2) either Party becomes insolvent or becomes unable to pay its debts as they become due; or (3) a receiver, liquidating officer or trustee is appointed for substantially all of the assets of the other Party.
Upon termination of this Agreement, or earlier upon the Disclosing Party’s request, the Receiving Party shall deliver all items containing the Disclosing Party’s Confidential Information to the Disclosing Party, or make such other disposition thereof as the Disclosing Party may direct. The following Sections are intended to survive expiration or earlier termination of this Agreement: 1, 3, 4, 5, 6, 9, 11, 13, 14(c), 15, 17 and 19.
15 NOTICES. Any notice, request, demand, or other communication required or permitted to be given under this Agreement shall be in writing and will be delivered personally, or mailed by first class mail, postage prepaid, overnight courier service or facsimile confirmed by mailing as described above, addressed as follows:
If to Net10:
Net10 Internet Services, LLC
PO Box 11742
Prescott, AZ 86304
If to Client:
To the address in Net10’s records for Client, which is the responsibility of Client to keep up-to-date.
16. GOVERNMENT CONTRACTS. If the retention of Net10 by Client is related to a contract issued or to be issued by the United States Government that requires incorporation of portions of the Federal Acquisition Regulations, DOD FAR Supplements, or other federal agency clauses, Client shall provide Net10 with all such relevant clauses and obligations in writing prior to the Parties executing and entering into such SOF so that they may be incorporated into to the applicable SOF; otherwise, without such written notice, Net10 shall not be bound to such clauses and obligations.
17. INDEPENDENT CONTRACTOR AND PERSONNEL. In performing the Services under this Agreement, Net10 is acting only as an independent contractor. Except as expressly set forth in this Agreement, Net10 does not undertake by this Agreement or otherwise to perform any obligations of Client, whether regulatory or contractual, or to assume any responsibility for Client’s business or operations.
- Net10 Staff. Net10 will be solely and exclusively responsible for its personnel decisions. Net10 will provide trained and qualified personnel as necessary to ensure its performance of the Services in accordance with this Agreement and any applicable SOF. Net10 may utilize the services of third party independent contractors in performing any of its obligations under this Agreement.
- Cooperation with Third Parties. During the Term, Client may retain third party suppliers to perform any service, function, responsibility, activity, or task that is outside of the scope of the Services, or to perform any such services, functions, responsibilities or tasks internally. Net10 will cooperate with any reasonable requests from such third party supplier and Client from time to time, provided that Net10 will have the right to restrict access to some or all of the Net10-owned resources, including, without limitation, the Net10 Infrastructure, and Net10 Confidential Information, if disclosure would, in Net10’s sole determination cause harm to Net10. Such restrictions may include, but not be limited to the imposition of data and physical security, and requiring the execution by such third parties of confidentiality and non-solicitation agreements. Any such third party arrangement will be reflected in a written amendment to this Agreement, which shall be signed by the authorized representatives of each of the Parties. If Net10’s cooperation with Client or any third party supplier operating on behalf of Client and performing work as described above causes Net10 to expend additional resources that Net10 would not otherwise have expended, such additional reasonable resources will be charged to Client at Net10’s cost and/or on a time and materials basis as set forth in the applicable SOF. Neither Client’s retention of third party suppliers to perform services, functions, activities, tasks, or responsibilities, nor Client’s performance of such services internally will relieve Client of its obligations to pay Net10 the Charges and Fees applicable to such Services, functions, activities, tasks or responsibilities.
- Non Exclusive. Each Party recognizes that Net10 may perform services similar to the Services for others. Nothing in this Agreement will prevent Net10 from performing similar services for others.
18. FORCE MAJEURE. A Party shall be excused from any failure to perform its obligations hereunder (except for a Party’s payment obligations) to the extent affected by a Force Majeure Event, for as long as such circumstances prevail and such Party continues to use its commercially reasonable efforts to recommence performance. Any Party incurring a Force Majeure event shall immediately notify the other Party hereto by telephone or, failing that, by the next most expedient means and describe the circumstances causing such delay. If any Force Majeure Event substantially prevents Net10 ability to perform the Services necessary for the functions reasonably identified by Client as critical, then until such critical functions are restored, Client may terminate the Services so affected, upon written notice to Net10, together with payment of all past due amounts (if any) under this Agreement, plus reimbursement to Net10 of Net10’s unamortized cost of hardware, software, and third party commitments to the extent used to provide such Services to Client. During the period that a Force Majeure event is in effect, Client shall not be required to pay service Charges for such day(s) that service was not available, such withheld Fees to be prorated based upon the number of days that the service was not available.
- Compliance with Law, Regulation. Each of the Parties shall comply with all statutes, ordinances, and regulations of all federal, state, county and municipal or local governments, and of any and all of the departments and bureaus thereof, applicable to the carrying on of its business and the performance of the Services. Client hereby agrees and gives assurances to Net10 that it will not, unless it has obtained prior written authorization from the U.S. Department of Commerce or is otherwise permitted by the U.S. Department of Commerce Export Administration Regulations, export or otherwise disclose, directly or indirectly, any of its technology or information, nor allow the direct product thereof to be shipped, either directly or indirectly, to any destination that is proscribed under Part 740 of the U.S. Department of Commerce Export Administration Regulations or to any national of any one of those countries (“Prohibited Nationals”). Net10 agrees to immediately notify Client if it intends to assign any Prohibited National to perform Services under this Agreement.
- Assignment. No right or interest in this Agreement shall be assigned either Party without the prior written consent of the other Party, which consent may be withheld for any or no reason. For purposes of this Section, assignments requiring consent include any assignment by operation of law; whether by way of merger, consolidation, reorganization or otherwise.
- No Third Party Beneficiaries. The Parties do not intend, nor will any Section of this Agreement be interpreted to create for any third party, beneficiary rights with respect to either of the Parties, except that the third party Indemnitees have the indemnification rights and benefits described herein.
- Breach, Wavier. Either Party’s waiver of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit or waive such Party’s right thereafter to enforce and compel strict compliance with every term and condition hereof.
- Choice of Law. This Agreement shall be deemed to have been made and executed in the State of Arizona and any dispute arising hereunder shall be resolved in accordance with the laws of the State of Arizona, without reference to its conflict of laws principles.
- Dispute Resolution; Forum/Venue; Waiver of Jury Trial. The Parties agree to use the alternative dispute resolution procedure set forth herein as the sole means of resolving any disputes arising out of this Agreement and the rights and obligations of the Parties, except for a breach of the Section herein entitled “Confidentiality” where equitable remedies are the only means of effectively protecting the injured Party.
If a dispute should arise, a senior executive for both Client and Net10 shall meet (in person or by conference call, as mutually agreed) within seven (7) Business Days of written notification of the dispute, at a location to be selected by the Parties to attempt to resolve the dispute. For purposes of this Agreement, “Business Day” shall mean Monday – Friday, excluding Federal and Arizona State holidays. If the dispute is not resolved at this meeting, then the two shall, within seven Business Days of such meeting, refer the matter to the next higher level of senior management for each Party, which senior executives shall have the authority to settle the dispute. The senior executives shall promptly prepare and exchange memoranda stating the issues in dispute and each other’s relative position on the merits, summarizing the negotiations which have taken place and attaching relevant documents. The senior executives shall meet (in person or by a conference call, as mutually agreed) as soon as practicable, but in no event later than fourteen (14) Business Days after the matter has been referred to them, with the initial meeting to occur at a location to be selected by the Parties.Any dispute that cannot be resolved amicably in the manner set forth in the preceding paragraph shall be resolved exclusively through binding arbitration in the County of Yavapai, in the State of Arizona, United States of America. Such arbitration will be conducted in accordance with Arizona Revised Statutes, Title 12, Chapter 21, Article 1. Any disagreement will be submitted to a mutually-agreed upon neutral retired judge or justice who will make a final and binding decision about the outcome of the dispute, which neither Net10 nor Client will be able to appeal. The Parties, their representatives and participants and the arbitrator shall hold the existence, content, and the result of the arbitration in confidence, except to the limited extent necessary to enforce a final settlement agreement or to obtain and enforce a judgment on an arbitration decision and award. The prevailing Party shall be entitled to recover from the other Party all of their reasonable costs incurred, including attorneys’ fees. THE PARTIES SHALL NOT RAISE IN CONNECTION THEREWITH, AND HEREBY WAIVE, TRIAL BY JURY AND/OR ANY DEFENSES BASED UPON THE VENUE, THE INCONVENIENCE OF THE FORUM, THE LACK OF PERSONAL JURISDICTION, THE SUFFICIENCY OF SERVICE OF PROCESS OR THE LIKE IN ANY SUCH ACTION OR SUIT.
- Interpretation. In the event any provision, term, condition, or covenant contained in this Agreement (or portion thereof) is held to be invalid or otherwise unenforceable by a court of competent jurisdiction, such provision (or part thereof) shall be enforced to the extent possible consistent with the stated intention of the Parties, or, if incapable of such enforcement, shall be deemed to be deleted from this Agreement, while the remaining provisions of this Agreement will remain in full force and effect. The Section headings herein and in each Exhibit and SOF are for reference purposes only and will not affect interpretation thereof.
- Rights Are Cumulative. Except as specifically provided in this Agreement, the rights and remedies of the Parties set forth herein shall be cumulative and in addition to any rights and remedies available to them at law and/or in equity.
- Entire Agreement. This Agreement constitutes the complete agreement between the Parties and supersedes all prior communications and agreements between them with respect to the subject matter hereof and may not be modified or otherwise amended except by a further writing executed by authorized representatives of both Parties hereto, which writing specifies that it is an amendment hereto.
- Parts, Counterparts; Execution by Facsimile. This Agreement may be executed in two or more identical counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to constitute the Agreement when a duly authorized representative of each Party has signed a counterpart. The Parties may sign and deliver this Agreement by facsimile transmission or by scanned and electronic version (i.e., a .pdf or similar file type) which are sent and delivered via email communications. Each Party agrees that the delivery of the Agreement by facsimile or other electronic version shall have the same force and effect as delivery of original signatures.
- Opportunity to Review with Independent Counsel. THE UNDERSIGNED REPRESENT AND WARRANT THAT THEY HAVE READ THE TERMS OF THIS AGREEMENT, HAVE HAD THE ADVICE OF COUNSEL OR THE OPPORTUNITY TO OBTAIN SUCH ADVICE IN CONNECTION WITH THE READING, UNDERSTANDING AND EXECUTION OF THIS AGREEMENT, AND HAVE FULL KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS OF THIS AGREEMENT.
All Clients of Net10 Internet Services, LLC (Net10) agree to abide by the following acceptable use policies. To meet changes in law or regulation, Net10 may change these policies and shall provide email notice to Client and updates will be posted at https://net10.net/terms
These Acceptable Use Policies demonstrate what Net10 considers to be acceptable conduct when using its service and actions that Net10 may take, with notice, when the service is used in material breach of the MSA. These AUPs are drawn from applicable law and generally accepted Internet conduct standards and are used to ensure the protection of Net10’s technical resources, ability to continue providing high quality service to Clients, and its reputation. Clients are expected to conform to the following AUPs:
- Client takes full responsibility for files and data transferred and to maintain all appropriate backups of files and data stored on the Net10 Infrastructure.
- Client is responsible for all use of its own account(s) and keeping all passwords safe and confidential, and setting file protections.
- If a password to Net10 portal is lost, stolen, or otherwise compromised, Net10 will suspend access or change Client account access immediately following notification by Client. Net10 will immediately provide such updated passwords to Client
- Net10 is not responsible for any usage by non-authorized third parties who gained access through Client or charges related to such prior to the notification and account alteration.
- Net10 makes email as safe as it possibly can, but no computer network can ever be considered completely safe from intrusion. Knowing this and that all email may pass through many computer networks it should not be considered a secure communication unless encrypted, and even then it is only as secure as the encryption method used.
- Unacceptable Conduct
- The following types of unacceptable conduct by Client are grounds for immediate suspension of service pending prompt investigation by Net10. Upon a finding of fault, such may result in termination without refund for any and all accounts held by the Client (individual, corporation, or Website) found to be in violation of AUP. Client’s business relationships (referrers, associates, etc.) impacting Net10 are also Client’s responsibility, and Client will make sure that they immediately cease non-compliant actions or Client discontinues its association with them. Continuing with material violations by Client’s business relationships after notice from Net10 may result in Net10, at its discretion and acting in good faith, terminating the Client relationship without refund, however, such will only occur after notice to Client and thirty (30) days to cure.
- The following behaviors are unacceptable conduct:
- Spamming or Harassment: Posting a single article or substantially similar articles to an excessive number of newsgroups (i.e., more than 20) or continued posting of articles which are off-topic according to the newsgroup charter, or which provoke complaints from the regular readers of the newsgroup for being inappropriate). Sending unsolicited mass E-mailings (i.e., to more than 25 users – not potential licensees of Client’s offering) that provoke complaints from the recipients.
- Engaging in abuse or harassment of other individuals on the Internet after being asked to stop by those individuals and/or by Net10.
- Email bombing, i.e., sending large volumes of unsolicited E-mail to individuals or to individual business accounts. Likewise, the sending of UBE (unsolicited bulk email) from another service provider advertising a web site, email address or utilizing any resource hosted on Net10’s servers, is prohibited.
- Impersonating another user or otherwise falsifying one’s username in E-mail, Usenet postings, on Internet Relay Chat (IRC), or with any other Internet service. (This does not preclude the use of nicknames in IRC or the use of anonymous retailer services.)
- Intellectual property right infringement: Knowingly using any means to transmit, publish, submit, copy, reproduce, steal, infringe on or distribute any information, software or other material that is protected by copyright, trademark, patent, trade secret, or other proprietary or intellectual property rights of any third party, including, but not limited to, the unauthorized use and/or copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software, unless you own or control the rights thereto or have received all necessary consents to do the same.
- Network Unfriendly or Illegal Activity
- Attempts, whether successful or not, to knowingly gain access to any other system or users’ private data without express consent of the user.
- Purposeful, attempts to interfere with the regular workings of Net10’S systems or network connections or which knowingly adversely affect the ability of other people or systems to use Net10’S services or the Internet.
- Any unauthorized attempts by a Client to gain access to any account not belonging to that Client on any of Net10’s systems.
- Any activity, which knowingly violates applicable local, state, U.S., or international law or regulation.
- Repeated submissions of transactions to Net10 utilizing the same or similar IPs with varying identification information with the goal of maliciously attacking Net10 servers.
- Violation of Net10 Policy
- Any attempt to bypass or remove Net10’S name, logo, or customer support link from any page from Net10’S servers.
- The posting or display of any image or wording related to any Web site running, participating, or advertising acts allowing the subscriber to bet or gamble on an uncertain outcome, or to play a game of chance for stakes.
- Any attempt to display, sell, or transfer materials that knowingly violate or infringe any third-party copyright, trademark, right of publicity, or proprietary rights of others, or contain anything obscene, libelous, or threatening.
- Reproduction, storage, advertising, or transmission of any software, program, product, or service in violation of any local, state, U.S., or international law or regulation is prohibited. Net10 makes every attempt in such cases to work with both U.S. and foreign law enforcement agencies to provide information about the providers and purchasers of such material. This includes the posting or display of any image or wording instructing users how to make or perform devices or situations that may violate any state, federal, or international law.
- Knowingly, operating an account on behalf of, or in connection with, or reselling any service to, persons or firms listed in the Spamhaus Register of Known Spam Operations (ROKSO) database, located at spamhaus.org/rokso.
- Compliance with Rules of Other Networks
- Monitoring/Privacy Net10 reserves the right to monitor any and all communications through or with its facilities, as well as all Client’s sites, for compliance with this AUP and Net10’s Terms and Conditions. Net10 is not a secure communication medium for purposes of the Electronic Communications Privacy Act, and no expectation of privacy is afforded. Net10 employees may be required to examine system accounting logs and other records to determine if privacy violations or other network unfriendly activities have occurred.
- Cooperation with Authorities Net10 cooperates with law enforcement and other authorities investigating claims of illegal activity, including without limit illegal transfer or availability of copyrighted material, trademarks, child pornography, postings, or email containing threats of violence, or other illegal activity.
- Confidentiality of Personal Subscriber Information Net10 will not release any Client or customer Personal Identifying Information (PII) to any third party except upon presentation of a valid court order or other request Net10 is legally required to respond to. Client agrees that Net10’s judgment of the validity of any court order, subpoena, or request shall be considered proper and final.
Any access to other networks connected to Net10’s Internet service must comply with the rules for that network as well as with Net10’s rules.
Net10.net’s Domain Name Registration Terms And Conditions Policy
To read our Terms and Conditions Policy on our Domain Name Registration website, visit us at https://net10net.shopco.com/terms for details.