STANDARD TERMS OF USE

Master Services Agreement

71 Spit Brook Rd, Ste. 405
Nashua , NH, 03060
Phone : 603-897-7300, 888-425-7425 Fax: 603-897-0100
www.prospeed.net

Please read this Master Services Agreement (this "Agreement") carefully before signing the Prospeed.net Service Agreement since, by signing the Prospeed.net Service Agreement, you consent to all of its terms and conditions. This Agreement is made by and between PROSPEED.NET ("ProSpeed.net, Inc."), a MA Corporation, and Customer (“Customer”). This Agreement is effective upon the date that ProSpeed.net is in receipt of Customer’s signed Services Agreement. The term "Agreement” shall include any and all Exhibits attached hereto and any and all Addendums attached hereto on or before the date of execution by ProSpeed.net or later Addendums executed by the parties to this Agreement which reference this Agreement. The parties signing the Service Agreement represent they have authority to bind their respective employers.

1. Service Agreements; Service Term.

Service Agreements.

Service Agreements are used for the provisioning of services desired by the Customer. The creation, review and approval of a Service Agreement initiate the obligations by both parties. Service Agreements require authorized signatures to proceed. Collocation customers will need to provide either a Certificate of Insurance or Waiver of Insurance prior to scheduling installation.

If providing service to the customer proves to be an extra economic burden on the service provider, the service provider may provide an alternative economical service to the customer, or the customer will be given the option to terminate the service agreement.

Service Agreement Renewal.
Upon the expiration of the Service Term, and unless otherwise agreed to by the Parties in the Service Agreement, each Service Agreement shall automatically renew for successive periods of one (1) year each (“Renewal Term(s)”), unless otherwise stated in these terms and conditions or prior notice of non-renewal is delivered by either Party to the other at least thirty (30) days before the expiration of the Service Term or the then current Renewal Term. Effective at any time after the end of the Service Term and from time to time thereafter, Prospeed.net may, modify the charges for Customer Services subject to thirty (30) days prior written notice to Customer. Customer will have thirty (30) days from receipt of such notice to cancel the applicable Service without further liability. Should customer fail to cancel within this timeframe, customer will be deemed to have accepted the modified Service pricing.

2. Fees and Billing.

Customer agrees to pay the Activation Charges, Monthly recurring fees and any other fees indicated herein or in any Addendum to the Service Agreement (collectively, "Service Fees") within thirty (30) days of invoice. The rates and charges for the Service are set forth in the Service Agreement. Customer agrees to pay all fees and charges incurred on the account, including any and all city, state or federal taxes and surcharges, whether imposed on ProSpeed.net or directly on Customer. ProSpeed.net reserves the right to change the rates and charges for any renewal term by providing Customer thirty (30) days written notice in advance of the effective date of change.

Billing is invoiced monthly, quarterly, bi-annually or annually for the services, in advance. Billing will commence when the connection from the ProSpeed.net network is completed to Customer’s equipment and service is initiated. Accounts are in default if payment of all amounts due are not received thirty (30) days after date of invoice, and is subject to collection procedures. Accounts unpaid (60) days after date of invoice will have the Service interrupted or terminated. Such interruption of Service does not relieve Customer of Customers obligation to pay for the Service. Accounts over 60 days past due are subject to termination and a $100 advance reconnection fee will be collected along with the outstanding balance. In the event ProSpeed.net incurs fees or expenses, including attorney's fees in collecting or attempting to collect any charges owed, the customer will be liable to ProSpeed.net for the payment of all such fees and expenses incurred. If a customer disputes any portion of the statement, Customer must pay the undisputed portion of the statement in full by the Due Date and submit a written claim fully documenting the reasons the remaining amount is disputed. After ProSpeed.net receives the claim, ProSpeed.net will undertake an investigation of the disputed charges. At the conclusion of the investigation, ProSpeed.net will notify the Customer of any amount determined by ProSpeed.net to be correctly charged and such amount will become immediately due. Unless such a claim is submitted in this manner and received by ProSpeed.net within 45 days from the date the statement is issued, Customer waives all rights to dispute such charges, unless otherwise provided by law.

Any account 45 days past due or over is subject to a $20.00 late fee charge or a 1.5% of the monthly charge of the outstanding balance over 30 days, whichever is higher.

2.1 Customer Move.

2.2 Termination and Termination Charges.

In order for Customer to terminate Service, Customer must provide ProSpeed.net with thirty days advanced written notice. If Customer does not give 30 days advanced written notice, Customer must pay the equivalent of one month’s additional service from the date the cancellation notice was received by Prospeed.net. Customer to use one of the following methods for canceling, e-mail: cancel@prospeed.net, fax: 603-897-0100 or regular mail: 71 Spit Brook Rd., Ste. 405, Nashua, NH 03060. The cancellation request should include name, address where service is located, service(s) to be canceled, cancellation request date and reason for leaving. The cancellation should also include updated contact information so Prospeed.net may acknowledge receipt of cancellation and process Customer final invoice.

Loaned or leased Prospeed.net equipment must be returned upon final cancellation of the service. Equipment not returned to Prospeed.net shall be charged at the replacement cost to customer.

Either party may terminate this Agreement at the end of the initial or renewal term by providing the other party with at least thirty (30) days written notice. ProSpeed.net may terminate Services for Customer's breach of the Agreement or the Acceptable Use Policy (AUP) in section 7 of this agreement. If Prospeed.net fails to meet the basic requirements of it's service level agreement, Prospeed.net will terminate service without termination fees under all of the following conditions; (i) Customer provides to Prospeed.net a statement in reasonable detail identifying the basis upon which Customer makes its election; (ii) Customer is available within a reasonable time for a follow-up interview related to the Service(s), which may include a telephone interview with an executive or other representative of Customer; (iii) Prospeed.net was given reasonable opportunity to identify and correct the service issue; (iv) Customer cooperates with Prospeed.net to address and resolve promptly any billing issue related to the Service(s) outstanding as of the termination date of the Service(s); and (v) there is no outstanding obligation of any kind to Prospeed.net by Customer or any Customer affiliate as of the date Service(s) is terminated. Subject to this Appendix, Prospeed.net will cooperate with Customer to transition the Services and any services of third parties to another provider as of the effective date of termination.

Termination of Service does not relieve Customer of any obligation to pay ProSpeed.net for charges due and owing for Services furnished up to the time of termination and the remaining contractual obligations.

2.3 Activation Charges.

Unless specified otherwise in the Service Agreement 75% of the non-recurring charges are due prior to installation of service. ProSpeed.net will not schedule or commence installation of Service until Prospeed.net has received payment of the Activation Charges agreed upon.

2.4 Recurring Service Fees.

ProSpeed.net, will begin billing for recurring Service Fees on the Installation Date herein; If, however, Customer is unable to use the Services commencing on the Installation Date solely as a result of delays caused by ProSpeed.net, (this does not include delays caused by third party service providers), then the Installation Date herein shall be extended one day for each day of delay caused by ProSpeed.net.

3. Services Description.

3.1 T1/T1 Bonded/T1 Point-to-Point/DS3/Ethernet Internet Connections Service Level Agreement.

Terms vary from 1-year, 2-year, 3-year or 5-year.

Disruption of Service.

Notwithstanding the performance standards identified,  availability objective for the services, the Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption the Services could lead to severe injury to business, persons, property or environment(“High Risk Activities”). These High Risk Activities may include, without limitation, vital business or personal communications, or activities, where absolutely accurate data or information is required.

Response and Repair Times- In the event of a service outage, excluding a force majeure event, Prospeed.net will respond within thirty minutes after receiving the notification of the outage from either internal network monitoring or customer. After receiving notification of the outage, Prospeed.net shall restore the service on its failed system within a four hour period. ProSpeed.net is not responsible for end user delaying repairs of circuit.

3.2 Ethernet Services.

Terms vary from 1-year, 2-year, 3-year or 5-year. First month charges are pro-rated and all applicable state and federal taxes apply.

Availability objective per month: 99.9%
Basic Use Ethernet Internet Service
Ethernet Internet service intended for small businesses with typical email, web browsing, and Voice over the Internet needs.  Moderate large downloads and uploads allowed.  Internet facing servers are not permitted.  If customer’s bandwidth utilization is determined to be excessive and/or typical of a medium or large business then discussions will be had with the customer to either curb usage or move customer to Dedicated Ethernet Internet Service at a different agreed upon monthly charge.  Throughput may be limited to less than contracted speeds if customer causes a delay in discussions or there is a delay in customer implementing discussed actions to curb usage.  Excessive usage will be determined at Prospeed.net’s sole discretion.

Dedicated Ethernet Internet Service
Ethernet Internet service intended for medium/large businesses or small businesses with high bandwidth needs and/or Internet facing servers.  Such customers have more than 10 users and/or have bandwidth needs which are atypical of a small business.  There is no limit to the utilization of available bandwidth for such customers unless such usage infringes Prospeed.net’s Acceptable Use Policy (ie file sharing of copyrighted content or disruptive activity from malware or spam).

Bandwidth Guarantee: Prospeed.net guarantees, that full port to port Circuit bandwidth is available for the customers use at all times unless breach of this agreement.

3.3 Hosted PBX and IP Trunking Services.

Terms vary from 1-year, 2-year, 3-year or 5-year. First month charges are pro-rated and all applicable state and federal taxes apply. Billing commences on the day when dial tone becomes available and calls can be placed and received. Usage charges for International, toll free, directory assistance, operator assisted directory assistance, plan overages and all applicable federal and state taxes are additional charges. These charges will be on the following monthly bill.

3.4 DSL.

Terms vary from 1-year, 2-year, 3-year or 5-year. First month charges are pro-rated and all applicable state and federal taxes apply.

3.5 Collocation Services.

Terms vary from 1-year, 2-year, 3-year or 5-year. Certificate of Insurance or Waiver of Insurance is required prior to scheduling installation. Bursting, 95th percentile explanation: On a monthly basis, Customer purchases a minimum amount of committed bandwidth for each Service for the specified term. To account for the instances that Customer's traffic bursts over the minimum committed amount of bandwidth, Prospeed utilizes a billing method referred to as the "95th Percentile Rule" as defined below.

1. ProSpeed.net shall invoice Customer on a monthly basis in advance for the minimum committed bandwidth at the rate agreed upon. ProSpeed.net's Simple Network Management Protocol (SNMP) bandwidth monitoring will sample (record a data point reflecting how much bandwidth Customer is utilizing at that particular instance) the inbound and outbound for each Service connection every 5 minutes and store those samples for a period of one month.

2. At the end of the month, all the data samples for the inbound and outbound are collected and sorted from highest to lowest individually. The highest 5% of each inbound and outbound sample are discarded and the next highest remaining data sample on either the inbound or outbound is the "95th Percentile" number. This number is used as the basis for computation of any additional charges for that particular month of Service over the minimum committed bandwidth. If the 95th Percentile number falls below the monthly minimum committed amount, no additional charges will be assessed.

Example: Customer has committed to 20.0 Mbps per month. Prospeed.net gathers all data samples for the month of Service and sorts them from highest to lowest discarding the top 5%. For the purpose of this example, the 95th Percentile for the month of Service was 25 Mbps. Prospeed.net will bill Customer for the previous month’s additional charges of 5 Mbps. The 5 Mbps of "over usage" will be billed at the "burst rate." Further, if the 95th Percentile calculation resulted in a number less than 20Mbps no additional charges would occur for that month.

3.6 Tier 1 Support.

Terms vary from 1-year, 2-year, 3-year or 5-year. Billing will commence on the day when service(s) are activated. First months charges are pro-rated.

Tier 1 Support allows the customer to call or email Prospeed.net for support needs or account changes relating to 3rd party services such as Internet and voice provided by another company other than Prospeed.net instead of contacting the carrier directly.  This will provide the customer with premium support, shielding them from phone trees, phone queues, and allows the customer to depend on Prospeed.net to follow-up with the carrier until problems are resolved or changes completed. 

Terms:
Prospeed.net will respond to Customer within an average of 2 hours for a major service affecting condition between 8AM and 5PM Monday through Friday, excluding weekends and holidays, to tickets emailed to support@prospeed.net or called into the help desk at 603-897-7300 opt 1. Depending on the vendor(s) and situation, charges may apply. 

After-hours support will be provided upon request to the best our ability and depending on the vendor’s service level for the products.

Prospeed.net will pursue all repairs with vendors to get services working properly as soon as possible.  Vendor response times and performance will vary.

Prospeed.net will respond to Customer for a minor service affecting condition within an average of 24 hours during normal business hours. Depending on the vendor(s) and situation, charges may apply.

Prospeed.net will respond to customer Move Add Change (MAC) work within an average of 24 to 48 hours and put work into motion when the needed information is complete from the customer or vendors. All MAC work needs to be emailed to support@Prospeed.net for tracking purposes or spoken to a Prospeed.net rep live or on the phone. A voice mail message only is not sufficient unless Prospeed.net responds with receipt of that message. Charges for MAC work from vendors will apply.
Prospeed.net will arrange for the vendor to give basic training on the products in the services described. This training may be at a cost to the Customer, a cost that would be described in the appropriate statement of work. On an ongoing basis, Prospeed.net will coordinate desired training.

Conditions:
Customer must allow Prospeed.net and vendors remote access to equipment covered under this agreement where applicable or requested.

Customer must be willing to help troubleshoot and isolate service issues before dispatches.

One or two persons in Customer’s organization should be responsible for collecting and e-mailing or calling in service requests.

Prospeed.net reserves the right to re-negotiate the contract to add monthly costs if support labor or service costs needs differ significantly from what is expected and this is not caused by Prospeed.net or Provider service issues, but by end user needs.

Prospeed.net will charge travel to customer sites when site visits are needed or requested.

Limitations:
This is not an equipment maintenance warranty agreement, except that Prospeed.net may offer a maintenance warranty agreement in a separate statement of work.

Should any work performed through this agreement generate charges from vendors associated with this agreement, customer will be advised of and approve work needed using standard industry practices.

Prospeed.net will not be liable for the failure to perform, or for delay in performance under this agreement due to any cause beyond its reasonable control, including, but not limited, to strike or other labor difficulty, act of God, act of any governmental authority or of the Customer, riot, sabotage, embargo, inclement weather, fire, flood, or inability to obtain necessary labor or materials from usual sources. In the event of a failure to perform or delay in performance due to any of the foregoing causes, then the time for completion of the maintenance services will be extended by a period of time reasonably necessary to overcome the effect of such delay.

Prospeed.net shall not be liable in contract, tort (including negligence), or otherwise for any special, indirect, incidental or consequential damages whatsoever, including, but not limited to, loss of profits or revenue, loss of use of the equipment, or claims of third parties.

4. Dispatch Support.

ProSpeed.net will dispatch technical support personnel to the Customer's premise and attempt to resolve all problems with connectivity at the Customers request 24/7. If it is determined by ProSpeed.net that all systems and equipment furnished by ProSpeed.net are functioning properly and that the problem arose from another cause, Customer is responsible for paying ProSpeed.net's labor and materials fees for the dispatch services. ProSpeed.net's standard labor fees are $150.00 per hour dispatched between 7 a.m. and 7 p.m. weekdays and $200.00 per hour dispatched at all other times. Travel time will be billed at the same rates.

5. Customer Equipment.

ProSpeed.net is not responsible for the operation and maintenance of any equipment, hardware, and/or software Customer provides or owns. Customer is responsible for ensuring that Customer equipment complies with Subpart D of part 68 of the Federal Communications Commission's Rules and Regulations. ProSpeed.net is not responsible for the reception or transmission of signals by Customer equipment or for the quality of, or defects in, such receptions or transmissions. Prospeed may, at the customer’s request, replace or repair the customer equipment at the Prospeed.net standard rates.

6. Resale.

Customer may not resell or provide for free (i.e. public wifi) the Service Prospeed.net has provided unless receiving express written approval from ProSpeed.net.

7. Acceptable Use Guidelines (AUP).

Customer shall at all times conform its use of and comply with all state, federal and international laws with respect to its utilization of the service. If ProSpeed.net is informed by any governmental authority or other parties of alleged illegal use or infractions of Prospeed.net’s Acceptable Use Policy or facilities or ProSpeed.net learns of such use or has reason to believe such use may be occurring, then Customer will cooperate in any resulting investigation by ProSpeed.net or government authorities. Any government determinations will be binding on Customer. If Customer fails to cooperate with any such investigation or determination, or fails to immediately rectify any illegal use, Customer will be in Breach (defined below) of this Agreement and ProSpeed.net may immediately, and without further notice, suspend Customer's Service. Customer’s use of ProSpeed.net Network may only be for lawful purposes. Transmission of any material in violation of any law, regulation or ProSpeed.net’s Acceptable Use Policy is strictly prohibited. Customer agrees to hold harmless ProSpeed.net from any claims resulting from use of the Service or the use of the Service by any of the customer’s users or others throughout the chain of distribution which damages the Customer or another party. ProSpeed.net may restrict or suspend Customer’s rights under the Agreement and Customer's of the ProSpeed.net service at any time to the extent ProSpeed.net deems it is necessary to protect the ProSpeed.net network, including without limitation of ProSpeed.net’s Acceptable Use Policy, with notification to Customer when such restriction or suspension is no longer necessary. Such restriction or suspension may continue through date of termination.

Customer agrees to abide by Prospeed.net’s Acceptable Use Policy (AUP) which can be viewed at www.prospeed.net/aup.htm

8. Insurance.

Collocation customers are required to present a Certificate of Insurance or Waiver of Insurance prior to scheduling installation.

9. Limitations of Liability

9.1 Personal Injury.

Each Customer Representative and any other persons visiting ProSpeed.net facilities does so at his or her own risk and ProSpeed.net shall not be liable for any harm to such persons resulting from any cause other than ProSpeed.net’s gross negligence or willful misconduct resulting in personal injury to such persons during such a visit.

9.2 Damage to Customer Business.

In no event shall ProSpeed.net be liable to Customer, any Customer Representative, or any third party for any claims arising out of or related to Customer's business, Customer's customers or clients, Customer Representative's activities at ProSpeed.net or otherwise, or for any lost revenue, lost profits, replacement goods, loss of technology, rights or service, incidental, special, punitive, indirect or consequential damages, loss of data, or interruption or loss of use of Service or of any Customer's business, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise. It is the customer’s responsibility to evaluate customer’s business risk, and obtain the necessary insurance.

9.3 Damage to Customer Equipment.

ProSpeed.net shall not be responsible for liability for any damage to, or loss of, any Customer Equipment resulting from any cause other than ProSpeed.net’s gross negligence or willful misconduct. In no event will ProSpeed.net be liable to Customer, any Customer Representative, or any third party for any claims arising out of or related to Customer Equipment of any lost revenue, lost profits, replacement good, loss of technology, rights or services incidental, special, punitive, indirect or consequential damages, loss of data, or interruption or loss of use of any Customer Equipment, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.

10. Defense of Third Party Claims and Indemnification.

10.1 Defense.

Customer will defend and hold harmless ProSpeed.net, its directors, officers, managers, members, employees, agents, affiliates and customers (collectively, the "Covered Entities") from and against any and all claims, actions or demands brought by or against ProSpeed.net and/or any of the Covered Entities alleging: (a) with respect to the Customer's business: (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander or violation of the rights of privacy or publicity; or (iii) any other offensive harassing or illegal conduct. (b) any personal injury or property damage to any Customer employee, Customer Representative, any escorted person or other Customer designee arising out of such individual's activities related to the Services, unless such injury or property damage is caused solely by ProSpeed.net’s gross negligence or willful misconduct; or (c) any other damage arising from the Customer Equipment or Customer's business (collectively, the "Covered Claims"). In the event of any claim under this paragraph, ProSpeed.net may select its own counsel.

10.2 Indemnification.

Customer hereby agrees to indemnify ProSpeed.net and each Covered Entity from and against all damages, costs, and fees awarded in favor of third parties in each Covered Claim, and Customer will indemnify and hold harmless ProSpeed.net and each Covered Entity from and against all claims, demand, liabilities, losses, damages, expenses and costs (including reasonable attorney fees) (collectively, "Losses") suffered by ProSpeed.net and each Covered Entity which Losses result from or arise out of a Covered Claim.

10.3 Notification.
Customer will provide ProSpeed.net with prompt written notice of each Covered Claim of which Customer becomes aware, and, at ProSpeed.net’s sole option, ProSpeed.net may elect to participate in the defense and settlement of a Covered Claim, provided that such participation shall not relieve Customer of any of its obligation under this Agreement.

11. Reliance on Disclaimer, Liability Limitations and Indemnification Obligations.

Customer acknowledges that ProSpeed.net has set its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability, the disclaimers of warranties and damages and Customer's indemnity obligations set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if this Agreement is found to have failed of their essential purpose.

12. Conditions of Breach.

Breach of this Agreement will occur if either party does not fulfill its obligations under this Agreement and such Breach is not cured within fifteen (15) days of written notice by the other party. Specifically relating to payment of Recurring Service Fees, the Customer will be in Breach of this Agreement if Customer has not paid its invoice within sixty (60) days of the date the invoice is due, with no notice required. Nothing in this Section shall supersede any other provision granting ProSpeed.net the right to immediately terminate or suspend Services under certain circumstances.

13. Remedies for Breach.

If Customer is in Breach of this Agreement, ProSpeed.net may (a) discontinue all Services to Customer; (b) disconnect Customer from its telecommunications services; or (c) remove Customer Equipment from Collocation Space and place Customer Equipment in storage. If ProSpeed.net is in Breach of the Agreement, Customer has the right to withhold recurring Service Fees for the time period from which the Breach occurred to the date that the Breach was cured. The customer shall be responsible for the balance of the term of the agreement, and payments can be made per agreement or as a lump sum.

14. Miscellaneous Provisions.

14.1 Force Majeure.

Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, fire, embargo, riot, sabotage, line cut, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.

14.2 No Lease.

This Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any real property interest in ProSpeed.net premises, and Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulation or ordinances.

14.3 Marketing.

Subject to Customer’s prior written consent and ProSpeed.net’s compliance with Customer’s brand guidelines (which will be provided upon request), ProSpeed.net may refer to Customer by trade name and trademark in ProSpeed.net marketing materials and web site. All trademarks, goodwill and related intellectual property rights associated with Customer's trade name and trademarks will inure solely to Customer.

14.4 Government Regulations.

Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.

14.5 Assignment.

Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, except to a party that acquires substantially all of the assigning party's assets or a majority of its stock as part of a corporate merger or acquisition. Any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.

14.6 Notices.

Any notice or communication required or permitted to be given hereunder may be delivered personally, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party first indicated above, or at such other address as either party may provide to the other by written notice. Such notice will be deemed to have been given as of the date it is delivered, or five (5) days after mailed or sent, whichever is earlier.

14.7 Relationship of Parties.

ProSpeed.net and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between ProSpeed.net and Customer. Neither ProSpeed.net nor Customer will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein.

14.8 Choice of Law and Arbitration.

This Agreement will be governed by and construed in accordance with the laws of the State of Massachusetts. Each party agrees to submit any and all disputes concerning this Agreement, if not resolved between the parties, to binding arbitration less than one (1) neutral, independent and impartial arbitrator in accordance with the Commercial Rules of the American Arbitration Association ("AAA"); provided, however, the arbitrator may not vary, modify or disregard any of the provisions contained in this Section. The decision and any award resulting from such arbitration shall be final and binding. The arbitrator is not empowered to award damages in excess of compensatory damages and each party hereby irrevocably waives any right to recover such damages with respect to any dispute resolved by arbitration. Both parties shall equally share the fees of the arbitrator. The arbitrator may award attorney's fees to the prevailing party as determined by the arbitrator.

14.9 Changes Prior to Execution.

Customer represents and warrants that it made no changes to this Agreement prior to providing this Agreement to ProSpeed.net for its acceptance and execution, and that ProSpeed.net alone incorporated any and all changes negotiated between, and accepted by, Customer and ProSpeed.net into this Agreement or into an addendum executed by both parties.

14.10 Entire Agreement.

This Order/Agreement represents the complete Order/Agreement and understanding of the parties with respect to the subject matter herein, and supersedes any other Order/Agreement or understanding, written or oral. This Order/Agreement may be modified only through a written instrument signed by both parties. Both parties represent and warrant that they have full corporate power and authority to execute and deliver this Order/Agreement and to perform their obligations under this Order/Agreement and the person whose signature appears above is duly authorized to enter into this Order/Agreement on behalf of the respective party. Should any terms of this Order/Agreement be declared void or unenforceable by any arbitrator or court of competent jurisdiction, such terms will be amended to achieve as nearly as possible the same economic effect as the original terms and the remainder of the Order/Agreement will remain in full force and effect. If a conflict arises between Customer's purchase order terms and this Order/Agreement, this Order/Agreement shall take precedence.
In the case of international, federal, state or local provisions to the contrary on the face of this Order/Agreement, attachments to this Order/Agreement, or on the reverse side of this Order/Agreement, this Order/Agreement is being used for administrative purposes only, and this Order/Agreement is placed under the subject solely to the terms and conditions of this Order/Agreement executed between Customer and ProSpeed.net.

14.11 Warranties.

The liability of ProSpeed.net for damages arising out of the furnishing of Service, or arising out of the failure to furnish Service, shall be limited to the extension of credit allowances or refunds of sums paid under each applicable Service Order. The extension of such credit allowances or refunds shall be sole remedy of Customer and the sole liability of ProSpeed.net. With respect to any ProSpeed.net Service, Customer must indemnify, defend, and hold harmless ProSpeed.net from and against all claims, damages, liabilities, costs, and expenses and obtain the necessary business insurance.

14.12 Amendment.

This Agreement may be modified or amended in writing, if the writing is signed by both parties under this Agreement.

14.13 Notice.

Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address listed on the Service Order.

14.14 Severability.

If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, constructed, and enforced as so limited.

15. "911" and Service Requirements.

15.1 Limited 911 Services.
When customer dials 911 calls are routed from the ProSpeed.net network to the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the address that Customer listed at the point of activation of voice services. Certain PSAP’s do not accept or answer calls routed to them in the manner described herein. Customers must notify ProSpeed.net of any address changes so that Customers permanent address records can be updated for 911 purposes. If Customer moves a ProSpeed.net Voice phone to a temporary location, the 911 operator will not automatically know the end users address since the phone was moved from its original intended location. Customer agrees to notify all users of this E911 limitation.

15.2 "911" Liability Disclaimer.

Neither ProSpeed.net, nor its officers, employees nor vendors may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to 911 dialing. You agree to indemnify and hold harmless ProSpeed.net, and its third party vendors and carriers from any claim or action arising out of the misrouting or incompletion of 911 calls. ProSpeed.net, and its third party vendors and carriers disclaim any and all liability or responsibility in the event such information or routing is incorrect or 911 calls are not completed.

15.3 Outages due to Electrical, Internet or other General Failures.

End- User acknowledges that the Services, including limited 911 services, will not function in the absence of electrical power, access to the Internet or other general failures associated with the Voice network. End-User acknowledges that the Services will not function if there is an interruption of End-User’s broadband or high-speed Internet access service.

15.4 Non-Voice Systems.

End-User acknowledges that the Services are not set up to function with out-dialing systems including home security systems, medical monitoring equipment, satellite television systems and some facsimile systems. End-User has no claim against ProSpeed.net, for interruption or disruption of such systems by the Services.

Standard Terms of Use November 20th, 2018