This Subscription Agreement (“Agreement”) is made as of the date you (“Customer” or “you”) click “I agree to the Toll-Free Exchange Terms of Service (the “Effective Date”), by and between Toll Free Exchange, LLC with a principal place of business at 1001 16th Street, B180-102, Denver, CO 80265 (“TFE”) and you. This Agreement sets forth the legally binding terms and conditions that govern your use of the Service. BY ACCESSING OR USING THE TFE SERVICE, YOU ARE ACCEPTING THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). If you do not agree with all of the provisions of this Agreement, do not access and/or use the Service. TFE reserves the right to suspend, amend, discontinue, limit, disable, terminate, or cancel any feature of the TFE Service or Customer’s access to the Service.
Definitions. As used in this Agreement:
- “Affiliate” means in relation to a party any other person controlling, controlled by or under common control with that party where “control” and related terms means having control of 51% or more of such party’s voting shares, and control of the day to day operations.
- “Confidential Information” means all information regarding TFE’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary.
- “Customer Data” means any data, information or information contained in any database, template or other similar document submitted by Customer through the TFE Service or provided by Customer to TFE as part of the TFE Service.
- “Documentation” means the designated final user manuals, handbooks, online materials, specifications or forms furnished by TFE that describe the features, functionality or operation of the TFE System.
- “In-Bound Call” means a toll-free call placed to a RO that is routed from the Service.
- “Order Form” means collectively the order documents representing the initial subscription to the TFE Service (and any subsequent modifications to the subscription provided by TFE) that, upon execution, are incorporated in and made a part of Exhibit A to this Agreement from time to time. Unless mutually agreed between the parties, Order Forms are non-cancelable and the number of Users in an executed Order Form cannot be decreased prior to the end of the then-current Term.
- “Originator” means the RO placing an Out-Bound Call on behalf of its customer.
- “Out-Bound Call” means a toll-free call originating from a RO that is routed to the Service.
- “RO” means responsible organization, as that term is defined by Somos (formerly SMS/800).
- “Sell Rate” means the amount per In-Bound Call for which Customer shall pay TFE, when Customer is a Terminating RO.
- “Service” or means the on-line service delivered by TFE to Customer using the TFE System, as made available by TFE from time-to-time as specified in Exhibit A.
- “Terminating RO” means the RO receiving an In-Bound Call on behalf of its customer.
- “TFE System” means the technology, including hardware and software, used by TFE to deliver the TFE Service to Customer in accordance with this Agreement.
- “Transaction Fee” means $0.0005 cents per minute for each call routed through the Service, as calculated from call detail records.
- “Subscription Administrator” means the individual assigned by Customer having responsibility over all administrative and billing matters relating to Customer’s use of the TFE Service, as identified in Exhibit A.
- “Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the TFE Service on behalf of Customer and have been supplied user identifications and passwords for this purpose.
- Subscription to the TFE Service. Subject to the terms of this Agreement, including, without limitation, the payment of the Charges set forth in Section 4 hereof, TFE hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the TFE Service by the number of Users identified in Exhibit A in accordance with this Agreement solely for Customer’s internal business purposes and not for resale or to provide services to third parties. If Customer places an order on behalf of an Affiliate, or an Affiliate of Customer places an order, upon such execution, such Affiliate shall be bound by the terms of this Agreement and such Affiliate entity shall be deemed “Customer” for purposes of the applicable Order Form and this Agreement. Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by TFE with respect to future functionality or features.
- Additional Users. Access to the TFE Services cannot be shared with anyone other than a User. If Customer wishes to add additional Users, Customer will request such additional Users. Upon mutual execution of any such additional Order Form, TFE shall make the TFE Service available to the additional Users on the terms and conditions set forth in this Agreement and each executed additional Order Form.
- Service Levels. Subject to the terms of this Agreement, including, without limitation, the payment of the Charges set forth in Section 4 hereof, TFE shall use commercially reasonable efforts to (a) maintain the security of the TFE Service; (b) perform regular (once daily) backups for the Customer Data and (c) make the TFE Service available in accordance with industry standard service levels. TFE may provide Customer with all call detail records upon reasonable request.
Customer’s Use of the TFE Service.
- Access and Security Guidelines. Each User will be assigned a unique user identification name and password (“UserID”) for access to and use of the TFE Service. Customer shall be responsible for ensuring the security and confidentiality of its UserIDs. UserIDs may be shared within the Customer’s organization provided that UserIDs may not be provided to any individual who is not a User. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the TFE Service, and notify TFE promptly of any such unauthorized use. Customer will not use its access to the TFE Service to: (a) harvest, collect, gather or assemble information or data regarding other TFE customers without their consent; (b) access or copy any data or information of other TFE customers without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the TFE Service or the data contained therein; or (d) harass or interfere with another TFE customer’s use and enjoyment of the TFE Service. Customer will, at all times, comply with all applicable local, state, federal, and foreign laws in using the TFE Service.
- Customer Data. Customer is solely responsible for the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. TFE may take remedial action if Customer Data violates this Section 3.2, however, TFE is under no obligation to review Customer Data for accuracy or potential liability.
- Use Restrictions. Customer is responsible for all activities that occur under Customer's User accounts. Customer will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of the TFE System; (b) interfere in any manner with the operation of the TFE Service, or the TFE System or the hardware and network used to operate the TFE Service; (c) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the TFE Service for the benefit of a third party or to operate a service bureau; (d) modify, copy or make derivative works based on any part of the TFE System; (e) otherwise use the TFE Service in any manner that exceeds the scope of use permitted under Section 2.1 hereof or (f) otherwise use the TFE Service in any manner not expressly set forth herein.
Charges, Payment and Suspension of Services.
- Payments from Terminating RO’s. As consideration for the subscription to the TFE Service provided by TFE under this Agreement, when Customer (or the RO Customer represents) is a Terminating RO, Customer will pay TFE the charges (“Charges”) set forth in and in accordance with Exhibit A, including the USF fees and the In-Bound Call rates. Overdue amounts shall accrue interest at the rate of 1 ½% per month, or at the highest legal interest rate, if less. Customer shall reimburse TFE for all expenses (including reasonable attorneys’ fees) incurred by TFE to collect any amount that is not paid when due. All rates owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes and regulatory fees, assessments and surcharges assessed upon, withheld or incurred in connection with this Agreement or the transactions contemplated by this Agreement. All such sales, use, excise and other taxes and regulatory fees, assessments and surcharges will be listed on TFE’s invoice to Customer.
- Payments to Originators. Subject to the terms and conditions of this Agreement, when Customer (or the RO Customer represents) is an Originator, TFE shall pay Customer the usage payments (the “Usage Payments”) set forth and in accordance with Exhibit A. TFE shall not have any obligation to pay Customer any Usage Payments to the extent that Customer is delinquent in paying any Charges.
- Setting Sell Rate. When Customer (or the RO Customer represents) is an Originator, Customer shall initially set its Sell Rate through the Service platform. Customer may at any time update its Sell Rate, although such Sell Rate shall not go into effect until first day of the second month after Customer makes such update. By way of example, if Customer changes its Sell Rate on June 30th, notice of the updated Sell Rate will be transmitted to the Terminating RO’s on July 1st, but the change in Sell Rate will not be effective until August 1st.
- Suspension of Service. TFE reserves the right (in addition to any other rights or remedies TFE may have) to discontinue the TFE Service and suspend all UserIDs and Customer’s access to the TFE Service if any Charges set forth in Exhibit A are more than thirty (30) days overdue until such amounts are paid in full. In addition, if Customer is delinquent in making any payments of Charges hereunder, then TFE can require a retainer from Customer for future Charges due. Customer shall maintain complete, accurate and up-to-date Customer billing and contact information at all times.
- Confidential Information. Customer agrees (a) to hold TFE’s Confidential Information in strict confidence, (b) to limit access to TFE’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder.
- TFE System and Technology. Customer acknowledges that TFE retains all right, title and interest in and to the TFE System and all software, materials, formats, interfaces, information, data, content and TFE proprietary information and technology used by TFE or provided to Customer in connection with the TFE Service (the “TFE Technology”), and that the TFE Technology is protected by intellectual property rights owned by or licensed to TFE. Other than as expressly set forth in this Agreement, no license or other rights in the TFE Technology are granted to the Customer, and all such rights are hereby expressly reserved by TFE. TFE shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the TFE Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the TFE Service.
- Customer Data. Customer retains all right, title and interest in and to the Customer Data. TFE will only use Customer Data to provide the TFE Service under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the TFE Service. Customer grants to TFE all necessary licenses in and to such Customer Data solely as necessary for TFE to provide the TFE Service to Customer. TFE will not knowingly use or access any Customer Data unless authorized to do so by Customer and, in such circumstances, TFE will access and use such Customer Data only as required to perform requested services on behalf of Customer. Notwithstanding anything to the contrary, TFE has the right to collect, extract, compile, synthesize and analyze personally or non-personally identifiable data or information resulting from the use or access to the Services, TFE System, and Customer Data that is collected, extracted, compiled, synthesized and analyzed by TFE (“Use Data”). The Use Data will be solely owned by TFE and may be used by TFE for any lawful business purpose without a duty of accounting to Customer and with no liability to Customer; provided that TFE shall not disclose any personally identifiable Customer Data.
Term and Termination.
- Term. The initial term of this Agreement will commence on the Effective Date and continue until terminated by either party on thirty (30) days notice to the other party. TFE reserves the right to increase the Charges upon notice to Customer.
- Early Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within ten (10) days after written notice of such breach. Upon the termination of this Agreement for any reason, (a) any amounts owed to TFE under this Agreement before such termination will become immediately due and payable; and (b) each party will return to the other all property (including any Confidential Information) of the other party in its possession or control. TFE agrees that upon any early termination of this Agreement, TFE will allow the Customer to access, without the right to modify, enhance or add to, the Customer Data (either through on-line access or an off-line mechanism provided by TFE) for a reasonable time period after termination. Thereafter, TFE will remove all Customer Data from the TFE System and all Customer access to or use of the TFE System and TFE Service will be immediately suspended. The rights and duties of the parties under Sections 1, 4, 5, 6, 7.2, 8, 9, 10, and 11 will survive the termination or expiration of this Agreement.
- Warranty; Disclaimer. Customer represents and warrants that: (a) it, and any RO’s that it represents, is a RO in good standing, with an active identification number issued by SMS800; (b) it’s use of the Service shall comply with all applicable laws; (c) it has all authorizations, permits, and permission in place allowing it to place and receive toll-free calls; (d) it shall not use the Service for any purpose other than routing toll-free calls as authorized under the Service; (e) it will accept all calls routed to Customer or its customers through the Service; and (f) it, and any RO’s that it represents is Universal Service Fund in good standing. For a period of sixty (60) days after the Effective Date (the “Software Warranty Period”), TFE warrants that the TFE Service, when used as permitted by TFE and in accordance with the instructions in the Documentation, will operate as described in the Documentation in all material respects. Other than the express warranty in the foregoing sentence, TFE makes no warranty concerning the TFE System or TFE Service. TFE not part of the Public Switch Telephone Network (PSTN). Customer agrees that calls connected using the Service are not subject to any tariff elements, such as CABS. This includes but is not limited to End Office, Database Query, Tandem, Local Switching, CMUX and related mileage. Accordingly, the TFE Service, the TFE System and all other data, materials, and documentation provided in connection with this Agreement by TFE and its suppliers are provided “as is” and “as available,” without representations or warranties of any kind. TFE and its suppliers make no other warranties, express or implied, by operation of law or otherwise, including, without limitation, any implied warranties of noninfringement, merchantability or fitness for a particular purpose or any implied warranties arising out of course of performance, course of dealing or usage of trade. TFE does not warrant that the TFE Service will be provided error-free, uninterrupted, completely secure, or virus-free.
- By TFE. If any action is instituted by a third party against Customer based upon a claim that the TFE Service or TFE System, as delivered, infringes a United States patent, copyright or trademark, TFE shall defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim. TFE may, at its option and expense, and as Customer’s exclusive remedy hereunder, (a) procure for Customer the right to continue using the TFE Service, (b) replace or modify the TFE System or TFE Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the TFE Service and refund any amounts previously paid for the TFE Service attributable to the remainder of the then-current term of this Agreement. TFE shall have no liability to Customer for any infringement action which arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the TFE Service or TFE System (i) after it has been modified by Customer or a third party without TFE’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by TFE. This Section sets forth the entire obligation of TFE and the exclusive remedy of Customer against TFE or any of its suppliers for any alleged infringement or adjudicated infringement of any patent, copyright or other intellectual property right by the TFE Service or TFE System.
- By Customer. If any action is instituted by a third party against TFE (a) arising out of or relating to Customer’s use of the TFE System or TFE Service (including claims by any customer or business partner of Customer); or (b) alleging that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party or (c) arising out of or relating to a claim that Customer does not have the right to provide Customer Data to TFE and to authorize TFE to use it as set forth herein, Customer will defend such action at its own expense on behalf of TFE and shall pay all damages attributable to such claim which are finally awarded against TFE or paid in settlement of such claim. Customer shall have no obligation under this Section for any claim or action that is described in Section 9.1 above or arises out of a breach of this Agreement by TFE.
- Conditions. Any party that is seeking to be indemnified under the provision of this Section 9 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (A) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (B) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (C) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.
- Limitation of Liability. TFE’s total cumulative liability to Customer for any and all claims arising from or in connection with this Agreement (under any legal theory including claims in contract or tort), the TFE Service and the TFE System, will not exceed the amounts actually paid to TFE by Customer in the twelve (12) month period immediately preceding the Customer’s formal written notice of the claim for liability hereunder. All claims that Customer may have against TFE will be aggregated to satisfy this limit and multiple claims will not enlarge this limit. In no event will TFE be liable for special, incidental, indirect or consequential damages arising out of or in connection with this agreement (under any legal theory including claims in contract or tort), including, but not limited to, interrupted communications, lost data or lost profits, and damages that result from inconvenience, delay or loss of use of any information or data or of the TFE System or TFE Service, even if TFE has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy provided herein.
- Publicity. TFE and Customer may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. All public announcements by either party concerning this Agreement are subject to prior written approval by Customer and TFE, which approval shall not be unreasonably withheld. The parties will use reasonable efforts to review and approve public announcements within three (3) days of submittal. Customer agrees to allow TFE to use Customer’s name and marks in customer lists and other promotional materials describing Customer as a customer of TFE and a user of the TFE Service, as well as on TFE’s website and on the Service.
- Assignment. Neither party may assign any rights or obligations arising under this Agreement, whether by operation or law or otherwise, without the prior written consent of the other; except that either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer agrees that TFE may subcontract certain aspects of the TFE Service to qualified third parties, provided that any such subcontracting arrangement will not relieve TFE of any of its obligations hereunder. Subject to the foregoing limitation, this Agreement shall inure to the benefit of and shall be binding on the successors and assignees of the parties.
- Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court sitting in Denver Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If a dispute arising under this Agreement results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys’ fees of the prevailing party.
- Force Majeure. TFE will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond TFE's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, telecommunications failures or delays, computer failures involving hardware or software not within TFE's possession or reasonable control and acts of vandalism (including network intrusions and denial of service attacks), but only if such unavailability results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes.
- Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at by e-mail at email@example.com (each party may change its email address from time to time upon notice to the other party of the new address). Unless otherwise set forth below, notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested) (c) sent via e-mail (deemed delivered upon transmission), (d) sent via fax (with confirmation of receipt), or (e) sent by recognized air courier service.
- Entire Agreement. This Agreement is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. TFE may update these terms at any time upon notice to Customer, and such updated terms shall be effective fifteen (15) days after Customer’s receipt of such modified terms.
- Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
- Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.
In-Bound Call Rates – For each In-Bound Call where Customer (or the RO Customer represents) is a Terminating RO, Customer shall pay TFE the Sell Rate set by the applicable Originator for such call. Payments are due and payable by Customer to TFE not less than thirty (30) days after Customer’s receipt of TFE’s invoice.
Usage Payments – For each Out-Bound Call where Customer (or the RO Customer represents) is the Originator, TFE shall pay Customer the Sell Rate minus the Transaction Rate. On or about the first day of the calendar month after TFE receives full payment of the applicable Charges from the Terminating RO Customer, TFE shall provide the Originator Customer with an invoice detailing all applicable Charges received in the prior month for which Originator Customer is entitled to receive Usage Payments. Such payments shall be due and payable by TFE to Customer on or about the first day of the next calendar month. By way of example, TFE shall send a notice to Originator Customer on or about July 1st detailing all Charges received in full by TFE in the month of June, and Usage Payments to Originator Customer based on such invoice will be made by TFE on or about August 1st. For clarity, if TFE only receives partial payment of Charges from a Terminating RO, TFE shall not have any obligation to pay Customer its Usage Payments until it receives full payment of all amounts from the applicable Terminating RO.
USF Fees. Calls connected through the Service are subject to Federal USF fees (as well as any other applicable FCC or state regulatory fees, assessments or surcharges), payable where Customer (or the RO Customer Represents) is a Terminating RO. These fees will appear on Customer’s monthly statement. If you have an active 499 Filer Id and are a direct, non de-minimus USF contributor please complete the 499 certification (obtained by contacting our billing group) to be exempted from these fees.