Terms

1.1.   Equipment. MarketSpark shall provide the necessary hardware (together with applicable Software, “Equipment”) to deliver the Services. Customer acknowledges that the Equipment is provided exclusively for use by Customer.  Customer may not sell or transfer possession of any Equipment except as may be provided in this Agreement or as otherwise mutually agreed to by the parties in writing. Any attempted sale or transfer in violation of this Agreement shall be null and void. In addition, Customer acknowledges that any unauthorized sale may result in the immediate voiding of any warranties that may have been passed through to Customer. Certain equipment required to provide the Services may be supplied by Customer and shall include, but not be limited to, the following: routers, switches, firewalls, digital phones, faxes, signal boosting equipment, and fire panels, among other equipment (such Customer-supplied equipment is collectively the “CPE”).

2.1. POTS replacement line(s) at each of the Customer locations as selected and identified by Customer and specified on the Service Order Form (“Customer Locations”).

2.2. MarketSpark will install the Services up to the demarcation point(s) (each, a “Dmarc”) at the Customer Locations. Dmarcs are defined as Customer’s main distribution frame (MDF), intermediate distribution frame (IDF), or computer or server room and may vary by location. Where MarketSpark is provisioning Services to a Dmarc at a Customer Location, Customer is responsible for providing all necessary and/or reasonably requested access rights, space, and power for MarketSpark’s facilities and equipment at the Dmarc.  If MarketSpark is unable to access the required Customer Location at the agreed upon date and time, MarketSpark is under no obligation to provide the Services.

2.2.1. For clarity, MarketSpark’s obligation is to provide a dial tone to the Dmarc. Any additional installation services or coordination with other service providers or personnel may result in additional fees, which shall be approved by Customer in advance and subject to these Terms.  MarketSpark’s technical support team is available for remote services at no additional charge to resolve connectivity with on-premises equipment.

2.3. Setup and installation Services provided by MarketSpark to install Equipment in the Customer Locations as provided in this Agreement.

2.4. Testing of new POTS replacement line(s) to the Dmarc(s).

2.5. Monitoring, management, and, solely for Equipment not owned by Customer, break‐fix Services for the Equipment installed by MarketSpark in the Customer Locations.

2.6. Access to MarketSpark’s portal for the purposes of monitoring Services at the Customer Locations and making changes such as call forwarding and other changes allowed using the portal.

2.7. Access to MarketSpark technical support. MarketSpark is not responsible for the timeline to port the Customers’ existing numbers. Although carriers are required to transfer their customers’ numbers upon request, execution time varies and is beyond the control of MarketSpark.

3.1. Fees. In consideration of the provision of the Services and Equipment, and the rights granted to Customer under this Agreement, Customer shall pay the Equipment Fees and Service Fees set forth in the Service Order Form, and all applicable taxes and surcharges that may be authorized or required under laws, regulations, or tariffs in connection therewith (collectively, the “Fees”) in accordance with the payment terms set forth in the Service Order Form.

3.2. Taxes. Customer will be responsible for all sales, use and excise taxes, and any other similar taxes, duties or charges of any kind imposed by any federal, state, or local governmental entity, and any regulatory costs, fees, surcharges, and assessments of any kind, including penalties, fines, interest, license and registration fees, electronic waste, recycling and other environmental fees, and sales, use and personal property taxes (without proration), whether imposed on MarketSpark or Customer or any of their respective affiliates, or on the Equipment, the Services, or any related instrument, whether any of the foregoing amounts are assessed or arise during the Term or thereafter and are fairly attributable to the Term excluding, however, taxes based on MarketSpark’s income (collectively, “Taxes”). Customer will pay to MarketSpark (or the relevant taxing authority if instructed in writing by MarketSpark) any and all Taxes.

3.3. Invoicing. MarketSpark will invoice Customer monthly for Products and Services, along with applicable Taxes, itemizing the Fees by Customer Location and by type of Fee. Invoices shall be due and payable by Customer in accordance with the payment terms set forth in the Service Order or as otherwise agreed upon in writing by the parties.

4.1. Term.

4.1.1. This Agreement shall commence as of the date set forth on the Service Order Form and shall continue thereafter up to and through the last day of the Service Period, unless terminated sooner pursuant to the terms of this Agreement (the “Initial Term”).  “Service Period” means the length of time set forth on the Service Order Form starting from the date of Equipment installation.

4.1.2. At the end of the Initial Term, the Service Period shall automatically renew on a month to month basis (each, a “Renewal Term” and all Renewal Terms together with the Initial Term, the “Term”), unless sooner terminated in accordance with the terms of this Agreement or either party provides the other party with written notice of nonrenewal at  least 30 days prior to the end of the then current-term.

4.2. Termination.

4.2.1. Either party may terminate this Agreement in the event the other party (a) materially breaches this Agreement and fails to cure such breach within thirty (30) days after the notifying party has given the breaching party written notice specifying such breach; or (b) makes an assignment for the benefit of creditors or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws.

4.2.2. Either party may terminate a Service Order Form by providing the other party with written notice at least thirty (30) days prior to the requested date of termination. Customer’s termination of a Service Order Form pursuant to this Section shall be subject to  the early termination fee set forth in the Service Order Form.

5.1 Prohibited Uses. Notwithstanding anything to the contrary contained herein, MarketSpark reserves the right, in its sole discretion, to immediately and without notice terminate the Services to Customer (and generally) for any of the Services or any other action that causes a disruption in MarketSpark’s network integrity, or directly or indirectly threatens or compromises the security of MarketSpark, its vendors, or the Services, or that otherwise violates this Section 6. Permitted use of the Services does not include certain activities including, but not limited to autodialing, robocalling, transmitting any material that contains viruses, time bombs, trojan horses, worms, malware, spyware, or any other program that may be harmful or dangerous, spoofing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, polling, transmitting any material that may infringe, misappropriate, or otherwise violate the foreign or domestic intellectual property rights or other rights of third parties, telemarketing (including without limitation charitable or political solicitation, junk faxing fax spamming, calling/faxing any person through the use of distribution lists or otherwise who has not given specific permission to be included in such a process, or any other activity that would be inconsistent with reasonable business usage. Customer shall not transmit through the Services any unlawful, harassing, defamatory, abusive, threatening, harmful, vulgar, obscene, indecent, or otherwise objectionable communications or material of any kind or nature. Customer further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, violate the intellectual property rights of others, give rise to civil or criminal liability or otherwise violate any applicable local, state, national or international statute, regulation, or other law. Customer agrees they will, at all times, comply with all applicable law. Applicable law includes, as applicable, the Telephone Consumer Protection Act and the Telemarketing Sales Rule, the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED Act”), the Truth in Caller ID Act, the Junk Fax Act, the CAN-SPAM Act, similar state laws, state laws regarding privacy and data subject rights, and the requirements of the Payment Card Industry Data Security Standard (“PCI DSS”).

5.2 Customer warrants and represents that: (1) Customer is not a provider of ‘voice service’ as defined by 47 CFR Section 64.6300(n); (2) Customer is not a ‘foreign voice service provider,’ as defined by 47 CFR Section 64.6300(c); (3) Customer is not an Intermediate Service Provider (ISP), as that term is defined by 47 CFR Section 64.6300(g); (4) all traffic sent by Customer to MarketSpark shall be originated in the conduct of Customer’s legitimate business, on Customer’s equipment, and using originating numbers that Customer has the legal right to use; and (5) neither Customer nor any of Customer’s affiliates or principals have ever been the recipient of a cease and desist, mandatory blocking, or similar order from the FCC, FTC, or other federal or state agency with respect to the transmission of voice or fax traffic. Customer will not send to MarketSpark traffic as a voice service provider, a foreign voice service provider or intermediate service provider (meaning, traffic originated by third parties and transited by Customer).

5.3 If any calls originated or otherwise transmitted by Customer to MarketSpark violate the terms of applicable law, then MarketSpark may, in its sole discretion, in addition to the remedies contained in these Terms of Service, suspend or terminate the Services immediately and freeze some and/or all prepaid monies remitted by Customer to MarketSpark until such time that MarketSpark, at its sole discretion, has determined it shall not be subject to any penalties, fines and/or “voluntary contributions” by the Federal Communications Commission and/or other third parties who have or may obtain a legal right of payment. Should MarketSpark be subject to any penalties, fines and/or “voluntary contributions,” MarketSpark may use any frozen payments as partial payment to the third party(ies) and MarketSpark may seek payment from Customer for any additional, required payments. Customer will cooperate with and promptly provide information requested in connection with any traceback requests. Any use found to be inconsistent with any of the restrictions set forth herein may result in the immediate termination of the Services. Customer also understands that MarketSpark may immediately suspend or terminate Customer’s right to use the Services, without liability of any kind, if (a) in MarketSpark’s sole discretion, Customer’s use of the Services exceeds what would be expected of normal business use. MarketSpark reserves the right, in its sole discretion, to block access to certain high cost/premium locations.

9.1. MarketSpark Indemnification. MarketSpark shall release, indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) incurred by Customer resulting from any third-party claim, suit, action, or proceeding that (i) the MarketSpark IP, Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, or (ii) results from MarketSpark’s gross negligence or willful misconduct; provided that in each instance, Customer promptly notifies MarketSpark in writing of such claim, cooperates with MarketSpark, and allows MarketSpark sole authority to control the defense and settlement of such claim.

9.2. Customer Indemnification. Customer shall release, indemnify, defend, and hold harmless MarketSpark, its affiliates, directors, officers, shareholders, employees, and agents from and against all Claims to the fullest extent permitted by applicable law. “Claims” means claims, judgments, damages, liabilities, settlement payments, losses, costs, expenses, Taxes, and recoveries for any amounts claimed due, including penalties, interest, and reasonable attorneys’ fees and disbursements, under actions (including those based on strict liability, statute, regulation, common law, or other legal theory) relating to (i) the operation, selection, manufacture, purchase, ownership, leasing, possession, maintenance, delivery, return, servicing or sale of the Equipment imposed during or fairly relating to any period preceding the expiration of the Term and the return or purchase of all Equipment; (ii) Customer’s failure or refusal to perform Customer’s duties and responsibilities under this Agreement; (iii) Customer’s failure or refusal to comply with any federal, state, or local law; (iv) any inaccuracy in or breach of any of Customer representations or warranties contained in this Agreement; (v) Customer’s use of any Services and/or Equipment hereunder that is not in accordance with any applicable restrictions, limitations, or obligations that MarketSpark has communicated in writing to Customer; or (vi) any unauthorized use by Customer of MarketSpark IP or Confidential Information.

10.1. EXCEPT WITH RESPECT TO A PARTY’S OBLIGATIONS OF INDEMNIFICATION PURSUANT TO SECTION 9, A BREACH OF THE OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 12, OR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, IN NO EVENT WHATSOEVER SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY CAUSES OF ACTION FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR OTHER SIMILAR TYPE OF DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES BASED UPON LOSS OF DATA, LOSS OF PROFITS, AND/OR LOSS OF BUSINESS, OR LOSS, DAMAGE, OR DESTRUCTION OF ANY PROPERTY, WHETHER CUSTOMER, CUSTOMER’S PERMITTED ASSIGNEE, OR ANY OTHER TRANSFEREE SUFFER THAT LOSS OR DAMAGE, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, WHETHER UNDER CONTRACT, TORT OR ANY OTHER CAUSE OF ACTION AND WHETHER OR NOT SUCH PARTY IS INFORMED, KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, UNLESS SUCH DAMAGES ARE DUE TO THE WILLFUL MISCONDUCT OF MARKETSPARK. EXCEPT WITH RESPECT TO MARKETSPARK’S OBLIGATIONS OF INDEMNIFICATION PURSUANT TO SECTION 1, IN NO EVENT SHALL MARKETSPARK BE LIABLE TO CUSTOMER FOR ANY AMOUNTS IN EXCESS OF AMOUNTS ACTUALLY PAID BY CUSTOMER TO MARKETSPARK PURSUANT TO THIS AGREEMENT. MARKETSPARK IS NOT LIABLE FOR THE CONTENT, ACCURACY, OR QUALITY OF INFORMATION TRANSMITTED THROUGH ITS EQUIPMENT, FACILITIES, OR SERVICES, OR THROUGH THE EQUIPMENT, AND CUSTOMER AGREES TO ASSUME ALL RISK OF TRANSMITTING, RECEIVING, OR USING ANY SUCH CONTENT OR INFORMATION. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION REPRESENT A FUNDAMENTAL TERM OF THIS AGREEMENT AND NEITHER PARTY WOULD HAVE ENTERED INTO THIS AGREEMENT WITHOUT THEIR INCLUSION.

10.2. MarketSpark does not control how emergency 911 calls are answered or handled by any local emergency response center. MarketSpark disclaims all liability and responsibility for the actions and conduct of any and all national and local emergency response centers. MarketSpark relies entirely upon third parties to route emergency 911 calls to local and national emergency response centers. MarketSpark disclaims any and all liability and responsibility resulting from the absence, failure or outage of the emergency 911 services, including without limitation the emergency dialing service or access to emergency service personnel, or in the event such third party data used to route the calls is incorrect or produces an erroneous result. Neither MarketSpark nor its officers, directors, members, shareholders, or employees may be held liable for any claim, damage or loss, and Customer hereby waives any and all such claims or causes of action arising from or related to, emergency 911 Services unless such claims arose from MarketSpark’s gross negligence, recklessness or willful misconduct. Customer, on its own behalf and on behalf of any third party, hereby agrees to defend, indemnify and hold harmless MarketSpark, its officers, directors, members, shareholders, employees and agents from and against any and all claims, losses, damages, fines, penalties, costs and expenses (including attorneys’ fees) relating to the absence, failure or outage of the emergency 911 services, including without limitation the emergency dialing service or access to emergency service personnel. MarketSpark is not liable for errors or omissions in any information about Customer in any published directory. Customer agrees to be solely responsible for ensuring the accuracy of any information about Customer in any published directory.

10.3. Notwithstanding any principle, rule, or law to the contrary, no action, proceeding, or arbitration of any kind whatsoever, whether sounding in tort, contract, restitution, equity, or otherwise, shall be brought by Customer against MarketSpark, or its directors, officers, shareholders, agents, or employees, more than one (1) year from the date Customer discovers, or through the exercise of reasonable diligence should have discovered, any cause of action, claim, controversy, or dispute arising out of, under, or in connection with the subject of this Agreement.

17.1. Modification; Entire Agreement. This Agreement may only be amended by a written document that is signed by Customer and MarketSpark. Handwritten alterations or additions to this Agreement will not be considered binding. This Agreement, including all Service Order Forms, exhibits, schedules, attachments, and riders, all of which are hereby incorporated into and made a part of this Agreement, contains all of the terms and conditions made between the parties with respect to the Services and Equipment and supersedes all prior agreements, understandings or arrangements, both written and oral.

17.2. Assignment. Neither party may assign this Agreement without the prior written consent of the other party, not to be unreasonably conditioned, withheld or delayed, except that: (i) MarketSpark may assign all or any of its rights and/or obligations hereunder (a) to its parent, affiliates or subsidiaries, (b) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets, or (c), with respect to the Equipment Fees and related rights to the Equipment only, for purposes of financing or servicing; and (ii) Customer may assign Customer’s rights and/or obligations hereunder (a) to Customer’s parent, affiliates or subsidiaries, or (b) pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all Customer assets, provided that (1) Customer has fully paid all Charges through the date of assignment; (2) the proposed assignee agrees in writing to be bound by all provisions of this Agreement; and (3) Customer remains obligated to perform under the Agreement.

17.3. Independent Contractor. MarketSpark’s relationship with Customer is that of an independent contractor. Nothing in this Agreement shall be deemed to alter that relationship, nor shall this Agreement be construed to create a joint partnership, joint venture, agency, or employer-employee relationship.

17.4. Time is of the Essence. The parties intend not to violate any applicable usury laws or to exceed the maximum amount of time price differential or interest, as applicable, permitted to be charged or collected by applicable law, and any such excess payments that would otherwise be charged or collected will instead be applied to Fees or other amounts owed under this Agreement or returned to Customer.

17.5. Waivers. Any party to this Agreement will be considered to have given up or waived its right to require strict performance and compliance of any provision of this Agreement by the other party only when it has signed a written agreement or acknowledgement waiving that strict performance and compliance of such provision in any instance. Any written waiver in any one instance will not apply to any other or later non‐performance or non‐compliance by the other party of such provision or any other provision.

17.6. Governing Law. In any action for injunctive relief or to collect any debt, each party consents to the exclusive jurisdiction of the state and federal courts having jurisdiction in San Diego, CA. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without regard to conflict of laws principles, and is subject to any federal, state, or local tariffs that may apply. If any conflict should arise between the terms of this Agreement and an applicable tariff or addendum, Customer agrees that the terms of the applicable tariff or addendum shall control. To the extent permitted by applicable law, each party expressly waives trial by jury.

17.7. Change in Laws. Customer acknowledges that future rules, tariffs, regulations, orders, treaties or other laws promulgated, enacted, or entered into by international, federal, state or local legislatures, agencies, governments or other regulatory bodies may affect Customer’s or MarketSpark’s respective rights or obligations under this Agreement. If any such future action adversely affects MarketSpark’s rights or obligations under this Agreement, then the parties shall renegotiate this Agreement in good faith to address the effect of such actions. If the parties are unable to reach an agreement, this Agreement shall be terminated without further penalties or fees to Customer.

17.8. Severability. If any court should declare any one provision of this Agreement to be invalid, then the other provisions will remain in effect and the parties will work in good faith to agree to a replacement provision that has the same or similar intent as the original provision. This Agreement is for the sole benefit of Customer and MarketSpark (and its assigns), and no other person.

17.9. Survivability. The provisions of Sections 6-10, 12, and 15-17 of these Terms, and the Service Order Form, as well as any other terms of this Agreement that expressly extend or by their nature should extend beyond termination or expiration of this Agreement, shall survive and continue in full force and effect after any termination or expiration of this Agreement for any reason.

17.10. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed to have been duly given when delivered in person, mailed by certified mail, return receipt requested or recognized overnight delivery service to the addresses listed below or to such other address as either party shall designate by giving written notice of such change to the other party. A courtesy copy may also be transmitted via email but only if accompanied by notice as set forth above.

If to the Company:

MarketSpark
2201 Waukegan Rd.
Suite 140
Bannockburn, IL 60015
Attention: Patrick Burns
Email: patrick@marketspark.com

with a copy (which shall not constitute notice) to:

K&L Gates LLP
Southeast Financial Center – 39th Floor
200 South Biscayne Blvd.
Miami, FL 33131
Attention: Clayton E. Parker, Esq.
Email: clayton.parker@klgates.com

If to the Customer:

To the address set forth in the Service Order Form.

17.11. Headings. The section headings used herein are for reference only and will not impact the interpretation of this Agreement.