SECTION 1: DEFINITIONS  

In addition to capitalized terms defined elsewhere in this Agreement, the following capitalized terms shall have the following meanings: 

“911” or “E911” means functionality that allows End-Users to contact emergency services.

“Intruity Terms & Policies” means the following URL or such other URL as Intruity may designate from time to time:  https://www.Intruity.com/legal. Intruity may update or amend the Intruity Terms & Policies from time to time.  

“Caller ID” means the calling party’s TN that is transmitted to the called party. Caller ID functionality is necessary to provide CNAM to the called party.

“Carrier Services” means all TN provisioning, call origination, call termination, emergency services and/or messaging services (SMS/MMS) provided by a third party. All Carrier Services are considered Third-Party Services; regardless of whether Customer self-sources Carrier Services, obtains Carrier Services through Intruity or directly from a third party. 

“Cloud Communications Platform” means all the software, features, functionalities, applications, network and hardware components that make up Intruity’s cloud-based communications platform. 

“CNAM” means the calling party’s name associated with their TN that is displayed to a called party whose telephone service includes a caller identification feature.  

“Device(s)” means any piece of equipment or software (e.g. IP phone, voice modem, voice analog telephone adaptor, or soft phone) that interfaces with the Cloud Communications Platform. Intruity shall maintain a current Device Policy in the Intruity Terms & Policies.

“Directory Listing” means a compilation of telephone subscribers as organized and provided by the publisher of the compilation in order to identify the TN of the listed subscribers.

“End-User” means any individual that accesses or uses Subscriber Services. 

“Lawful Intercept” means law enforcement’s ability to selectively wiretap individual subscribers with a court order.

“LNP” means Local Number Portability and is the process by which a Subscriber: (a) moves their TN from an existing fixed-line or mobile carrier to another carrier, or (b) changes the TN type.

“Network Connectivity” means the data connectivity between Customer’s network and the Cloud Communications Platform. Unless otherwise set forth in a Service Schedule, the method of Network Connectivity shall be the public internet.  

“Product” means any product based on Intruity’s Cloud Communications Platform that Intruity licenses to Customer for use by Subscribers or End-Users. 

“Professional Services” means any projects or services performed by Intruity pursuant to additional terms and pricing set forth in an SOW. 

“Provider of Record” means the entity that is exclusively responsible for compliance with regulatory and tax registrations, collection and remittance of taxes and fees, and all federal and state regulatory obligations relating to the provision of Subscriber Services. Unless otherwise set forth a Service Schedule, Customer is the Provider of Record.  

“PSAP” means the Public Safety Access Point or call center to which emergency services phone calls are routed.  

“Services” means each and every Product or service provided by Intruity in connection with this Agreement; including all updates and modifications thereto, as well as any new products or services added by Intruity after the Effective Date. All Services are subject to Intruity Terms & Policies. 

“SOW” or “Statement of Work” means a document signed by authorized representatives of both Parties that describes Professional Services which shall be performed by Intruity subject to and in accordance with this Agreement. 

“Subscriber” means any individual or entity that purchases Intruity-enabled products and services from Customer.

“Subscriber Services” means the services provided by Customer to Subscribers. 

“Taxes” means all applicable taxes, regulatory fees, duties, charges and surcharges that arise in any jurisdiction; including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, bypass, Universal Service Fund (USF) or other.  

“TN” means a telephone number. 

“Term” means the time period defined in Section 4.5 below.

“Third-Party Services” means any hardware, software or service that is not a part of Intruity’s Cloud Communications Platform, but which may be required for Customer to provide Subscriber Services. Examples of Third-Party Services include, but are not limited to Devices, Carrier Services, Lawful Intercept, and Network Connectivity.

“Usage Charges” means charges related to calls and/or messaging traffic, that is measured in units – usually minutes, seconds, calls, or messages.  

SECTION 2: INTRUITY OBLIGATIONS

2.1 Manner of Provision. Intruity shall provide all Services set forth in the agreed upon Service Schedules in a professional and workmanlike manner and in accordance with the provided Service Level Agreement. 

2.2 License. Subject to Customer’s compliance with the provisions of this Agreement, Intruity grants to Customer a limited, non-assignable, non-exclusive, license to access and use the Services defined herein, solely for the purposes set forth herein. Customer may not (a) attempt to obtain a copy of any element of the Services, (b) reverse compile, reverse engineer, reverse assemble or otherwise attempt, directly or indirectly, to obtain or create source code for any element of the Services, (c) modify or create derivative works of any element of the Services, or (d) allow any third-party to sub-license, transfer, distribute, sell or resell any Services provided by Intruity hereunder.

2.3 Training. Intruity will provide Customer initial and ongoing training as reasonably needed (train the trainer approach), and Customer will ensure that its representatives and agents are appropriately trained in the administration of the Services. See additional training section.

SECTION 3: CUSTOMER OBLIGATIONS

3.1 Sales and Marketing. Customer is solely responsible for managing the pricing, marketing, promoting, and selling of Subscriber Services. 

3.2 Subscriber Support. Customer is responsible for providing Subscribers support according to the terms set forth in the Service Level Agreement. 

3.3 Provisioning. Customer is solely responsible for authorizing, provisioning, and monitoring all Services provisioned in the Cloud Communications Platform and for promptly deleting any unauthorized Services provisioned in the Cloud Communications Platform. Customer is solely responsible for all Customer, Subscriber and End-User use, misuse and fraud related to use of the Services.

3.4 Subscriber Invoicing. Customer is responsible for invoicing Subscribers, tracking account balances, and setting the proper account status in the Cloud Communications Platform. Intruity is not responsible for any errors committed by Customer in this process.

3.5 Taxes and Fees. Unless otherwise set forth herein: (i) Customer is exclusively responsible for all regulatory compliance and registrations; as well as the calculation, collection and remittance of all applicable Taxes on all of Customer’s purchases from Intruity and all Subscriber Services, (ii) Customer agrees to provide all applicable exemption certificates to Intruity and (iii) if Customer fails to provide all applicable exemption certificates to Intruity, Intruity will have the right to charge Customer directly for all applicable Taxes.  

SECTION 4: PRICING, INVOICING, PAYMENT, TERM AND TERMINATION

4.1 Pricing. All pricing for Services shall be set forth in a Service Schedule or any associated SOW. 

4.2 Invoicing. Intruity shall invoice Customers monthly in US dollars.  The invoices will state the charges due plus any applicable Taxes and fees. Non-Recurring Charges (“NRCs”), Usage Charges and Taxes are invoiced in arrears from the prior month. Monthly Recurring Charges (“MRCs”) are invoiced in advance according to the count of applicable Products and Services provisioned in the Cloud Communications Platform as of the first day of each month (regardless of account status); and continuing until the applicable Products or Service is deleted from the Cloud Communications Platform.  All amounts stated in the Agreement and Service Schedules are listed in US dollars unless otherwise expressly stated otherwise.

4.3 Invoice Disputes. The Parties will work together in good faith to resolve any invoicing errors or disputes, and Customers may withhold the portion of any invoice disputed in good faith. Any invoice not disputed within 90 days after issuance of the invoice in question shall be deemed correct and irrevocably accepted by Customer and no longer subject to dispute. 

4.4 Payment and Deposit. Payment of all invoices shall be made by Customer automatically from the card on file, no later than 7 days after issuance of all invoices (the “Due Date”). If the customer fails to pay on two consecutive invoices, their Intruity services will be terminated until all invoices are up to date.

4.5 Term. The Term of this Agreement shall commence on the Effective Date and continue for a period of 12 months.  Unless either Party provides written notice to the other Party of non-renewal at least 1 month before the end of the then-current Term, the Term will automatically be extended for subsequent 12-month periods.

4.6 No Exclusivity. Intruity and Customer will agree to collaborate on a non-exclusive basis as detailed in this Agreement, to enable the provision of Authorized Services by Customer. Each Party is free to conduct business with other partners at its sole discretion.

4.7 Termination. Neither Party may terminate this Agreement for convenience. Either Party may terminate this Agreement after 30 days’ written notice of breach and failure to cure the breach by the breaching Party. If the breach is a failure to pay amounts due under this Agreement within 7 calendar days of the Due Date (other than amounts disputed in good faith), Intruity may, after giving 5 business days prior notice, suspend all Services. 

4.8 Early Termination. If Customer terminates this Agreement for reasons other than an uncured breach by Intruity, or if Intruity ceases to provide any Services as a result of an uncured default by Customer, Customer shall incur a termination charge from Intruity equal to the sum of: (i) all unpaid amounts for Services provided through the date of termination, and (ii) the greater of (a) the total MRCs charged by Intruity to Customer on the most recent invoice multiplied by the total number of months remaining in the Term, and (b) any unmet revenue commitment defined herein, multiplied by the total number of months remaining in the Term. The Parties agree that these charges are a genuine estimate of Intruity’s actual damages and a good faith liquidation thereof. They are not intended as a penalty.

4.9 Transition Assistance. Upon proper termination of this Agreement by either Party and upon Customer request (and subject to Customer’s ongoing good standing), Intruity may assist Customer with exporting their data in transitioning Subscribers from Intruity to Customer, or to an alternate provider. Both Parties will use reasonable efforts to define a project plan to be incorporated into a SOW, and such plan will define the estimated scope and effort related to all transition related activities. Charges from Intruity to Customer for the transition assistance outlined in this section will be based on the actual scope; but in any event, will not exceed an NRC of $3.50 per each Product and each provisioned TN. Such transition related charges will be invoiced to Customer upon execution of the SOW.

4.10 Effect of Termination. Upon termination of this Agreement for any reason, the provisions of this Agreement that by their nature indicate that the Parties intended that they would survive shall survive.

SECTION 5: CONFIDENTIALITY, PROPRIETARY RIGHTS AND CPNI

5.1 Confidential Information. “Confidential Information” means any proprietary information of a Party to this Agreement disclosed by one Party (“the Disclosing Party”) to the other (“the Receiving Party”) that (i) is in written, graphic, machine readable or other tangible form and is marked “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature, or (ii) otherwise would be understood by a reasonable person in the industry to be generally of a confidential nature. Confidential Information may also include oral disclosures provided that such information is designated as confidential at the time of disclosure. 

5.2 Exceptions. Confidential Information will not include any information that (a) was in the public domain prior to the time of disclosure by the Disclosing Party, (b) becomes public information after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party, (c) is already in the possession of the Receiving Party at the time of disclosure without an obligation of confidentiality, (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, or (e) is obtained by the Receiving Party from a third party lawfully in possession of such information and without a breach of such third party’s obligations of confidentiality.

5.3 Non-Use and Non-Disclosure. Each  Party will (a) treat as confidential all Confidential Information of the other Party, (b) not disclose such Confidential Information to any third party, except on a “need-to-know” basis to third parties that owe a confidentiality obligation to the Receiving Party substantially as protective as the terms of this Section, and (c) not use such Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. Notwithstanding the foregoing, each Party is permitted to disclose the other Party’s Confidential Information if required by law so long as the other Party is given prompt written notice of such requirement prior to disclosure (to the extent legally permitted) and an opportunity to obtain an order protecting such information from public disclosure.

5.4 Confidentiality of Agreement. Neither Party will disclose the terms of this Agreement to any third party without the consent of the other Party; provided that each Party may disclose the terms of this Agreement (a) in connection with the requirements of a public offering or securities filing, (b) in confidence, to attorneys, accountants, banks, and financing sources and their advisors, (c) in connection with the enforcement of this Agreement or rights under this Agreement, or (d) in confidence, in connection with an actual or proposed merger, acquisition, investment, or similar transaction.

5.5 Proprietary Rights. Intruity hereby reserves all intellectual property rights not explicitly granted in this Agreement. As between Intruity and Customer, Intruity owns all intellectual property rights in and to the Services, and to all related documentation and copies thereof, including without limitation all copyrights, trademarks, patents, trade secrets and other intellectual property (the “Proprietary Rights”), including goodwill or reputation that accrues to Intruity’s intellectual property. To the extent that any Proprietary Rights are invented, created, developed, or first reduced to practice under this Agreement, jointly by the Parties or in connection with Intruity’s provision of the Services (including, but not limited to, any Professional Services or other custom development provided by Intruity), Intruity will own all right, title, and interest in and to such Proprietary Rights, with no duty to account to Customer with respect to the use and exploitation of such Proprietary Rights. Nothing in this Section prohibits Customers from independently developing interfaces with the Services. As between the Parties, Customers will retain all right, title, and interest in any product that it develops independently.

5.6 Customer Proprietary Network Information (“CPNI”). Both Intruity and Customer acknowledge that rules and regulations apply to CPNI that require specific safeguards to protect against the unauthorized disclosure of CPNI. CPNI refers to information that relates to the quantity, technical configuration, type, destination, location, amount of use and billing data of a telecommunications or interconnected VoIP service, that is made available to a Party solely by virtue of a customer relationship. CPNI does not, however, include subscriber list information, which is information identifying the name, address and TN of a customer that is published, caused to be published or accepted for publication in a directory. Both Intruity and Customer warrant that they will implement required safeguards and otherwise abide by the rules and regulations that apply to CPNI with regard to any Subscriber or End-User. The Parties agree that they will only use CPNI for the purpose of which the CPNI is provided and they will not disclose CPNI to third parties unless disclosure is required to fulfill their obligations under this Agreement, or as otherwise permitted or required by law. 

SECTION 6: WARRANTY DISCLAIMER AND LIABILITY LIMITS

6.1 WARRANTY DISCLAIMER. NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION NOR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT.  EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE.  Intruity DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES PROVIDED HEREUNDER, OR AGAINST INFRINGEMENT. Intruity DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED.  

6.2 LIABILITY LIMIT AND CAP. EXCEPT WITH REGARD TO A PARTY’S CONFIDENTIALITY OBLIGATIONS, LICENSE RESTRICTIONS, DUTY TO PAY FEES UNDER THIS AGREEMENT (INCLUDING EARLY TERMINATION CHARGES), GROSS NEGLIGENCE,  AND/OR WILLFUL MISCONDUCT, NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF A PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING; NOR, EXCEPT FOR THOSE ITEMS LISTED ABOVE IN THIS PARAGRAPH, SHALL  EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID OR COMING DUE TO BE PAID BY CUSTOMER TO Intruity FOR PRODUCTS DURING THE THREE MONTHS PRECEDING THE ACT OR OMISSION THAT PRECIPITATED THE CLAIM.

SECTION 7: INDEMNIFICATION 

7.1 Indemnification by Intruity. Intruity will defend and indemnify Customer from and against any claim by any third party that the Customer’s authorized use of the Services infringes or misappropriates any intellectual property rights of such third party.  Intruity may, in the event of such a claim, in its sole and absolute discretion, (a) procure the continuing right for Customer to use the Services; or (b) replace or modify the Services in a functionally equivalent manner so that they no longer infringe; or, if neither (a) nor (b) is reasonably available, Intruity may (c) discontinue offering the infringing functionality or capability.  Intruity’s duties under this section shall not arise if the alleged infringement is a result of unauthorized use or modification of the Services or a combination of the Services with any software or product provided by Customer, or if Customer fails to comply with Intruity’s instructions that would mitigate or end the infringing conduct or activity.

7.2 Indemnification by Customer. Customer will defend, indemnify, and hold harmless Intruity from and against any claim by any party that arises out of, results from, or relates to: (a) Customer’s access to or use of, or attempts to access or use, any Third-Party Service(s); (b) Customer’s Subscriber or End-User’s use of the Services in any unauthorized manner, including but not limited to use in violation of any law or applicable regulation; (c) Customer’s breach of any representations, warranties, covenants or other obligations set forth in this Agreement; (d) any claim that Customer has infringed upon or misappropriated any intellectual property rights of a third party, other than through the direct use of the Services; and (e)  any claim or allegation related to Intruity’s calculation, collection, or remittance of Taxes based upon inaccurate or incomplete data provided by Customer (or its billing system).

7.3 Procedures. The indemnifying Party’s duty to indemnify, defend, and hold harmless shall arise only if the indemnified Party gives prompt written notice of any claim of which it becomes aware; provided that failure to provide prompt written notice shall only excuse the indemnifying Party’s obligations to the extent the failure resulted in actual prejudice.  The indemnifying Party shall have full and complete control over the defense and settlement of the claim, and the indemnified Party shall provide assistance in connection with the defense and shall cooperate and comply with any settlement or court order made in connection with the claim; provided, however, that the indemnified Party shall have the right to approve any settlement that requires any action by the indemnified Party.

SECTION 8: GENERAL PROVISIONS

8.1 Compliance with Laws.  Each Party shall comply with all applicable laws and regulations applicable to its conduct under this Agreement, including but not limited to obtaining any necessary permits or licenses.

8.2 Fair Use and Protection Policy. Intruity maintains the right (without liability to Customer) to immediately terminate any or all Services to any Subscriber, Device, geographic location, or otherwise in order to protect against and prevent: (a) any form of security breach, (b) fraudulent or illegal activity, (c) any activity that compromises or threatens to harm Intruity’s ability to provide the Services (d) any automated call blasting or other mass calling, faxing or messaging applications, or (e) any use or abuse that is inconsistent with industry norms or the terms of this Agreement.

8.3 Assignment. Neither Party may transfer or assign this Agreement, in whole or in part, without the written consent of the other Party, which consent will not be unreasonably withheld or delayed, except that either Party may transfer or assign this Agreement, without such consent or prior notice, to an entity that acquires all or substantially all of the business or assets of such Party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. Any attempt by a Party to transfer or assign this Agreement without a required consent will be null and void. Subject to the foregoing, this Agreement will insure to the benefit of and be binding upon any permitted successor or assignee of the Parties.

8.4 Governing Law. This Agreement shall be construed and governed under the laws of the State of Florida, USA. 

8.5 Notices. Any notice, request, demand, or other communication required or permitted in this Agreement will be in writing, will reference this Agreement, and will be effective: (a) when delivered personally; (b) when sent by email, with written confirmation of receipt; or (c) when delivered by a nationally recognized express courier (with confirmation of delivery receipt). All notices will be sent to the address set forth on the signature page of this Agreement.

8.6 Independent Contractors. The Parties hereto are independent contractors.  Nothing herein creates a partnership, joint venture, or agency relationship between the Parties. 

8.7 Entire Agreement and Amendment. This Agreement, is the complete and exclusive agreement between the Parties, superseding any and all prior or contemporaneous agreements, communications, and understandings (both written and oral) regarding this subject matter.  Any terms in any other order, release, contract, or other communication that are additional to, different from, or inconsistent with the provisions of this Agreement will be deemed to be rejected, void, and of no effect. This Agreement may be modified only by an instrument in writing signed by each Party’s duly authorized representative.

8.8 Waiver. No failure of either Party to exercise or enforce any of its rights under this Agreement will act as a waiver of these rights. Any waiver of any provision of this Agreement must be in writing and signed by an officer of the waiving Party. 

8.9 Severability and Conflict of Terms. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect. To the extent reasonably possible, the provisions of the MSA, and all Service Schedules, SOWs, and the Intruity Terms & Policies shall be interpreted so as to avoid any conflict between them. However, in the event of a conflict between any term(s), precedence will be given first to any SOW, then the Service Schedules, then the MSA, and lastly to the Intruity Terms & Policies.

8.10 Force Majeure. Except for payment obligations, neither Party shall be liable for delays or failures to meet obligations caused by an event over which the Party has no reasonable control and which occurs without the fault of the Party; including without limitation, war, flood, earthquake, fire, act of God, act of terrorism, solar flares (a “Force Majeure Event”). 

8.11 Publicity. Intruity may (a) prepare press releases with respect to this Agreement, which will be released after approval by Customer (such approval not to be unreasonably withheld or delayed); (b) disclose to third-parties that Customer is an Intruity customer; and (c) use the name of and identify Customer as a customer in advertising materials.

8.12. Trademarks. Each Party grants to the other Party a non-exclusive, non-transferable, royalty-free right to display the trademarks, service marks and logos of the other Party solely to: a) allow each Party to perform its obligations under this Agreement, and (b) to display in marketing material indicating its business relationships.

8.13 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer upon any person other than the Parties hereto any rights or remedies. Customer will not make any representations, warranties, or guaranties to any Subscriber or third-party concerning the Services without Intruity’s express written consent.  

8.15 Execution in Counterparts. This Agreement may be executed in counterparts (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law), each of which will be deemed to be an original.