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EasyLink Home > Terms of Service
Terms of Service
(Version 2.0; Last Revised October 28, 2008)
1. Agreement
(a) Agreement. These Terms of Service (these “Terms”) create a contract between EasyLink Services International Corporation (“ESIC”) or the wholly-owned ESIC subsidiary specifically identified in another document that incorporates these Terms by reference (as applicable “EasyLink”) and the customer specifically identified in another document that incorporate these Terms by reference (the “Customer”), each applicable service schedule (each, a “Service Schedule”) that is signed by both EasyLink and the Customer and any other document that is signed by both EasyLink and the Customer and that specifically incorporates by reference these Terms (with all of such documents being, collectively, the “Agreement”).
(b) Changes to Terms. EasyLink may amend these Terms at any time with any such amendment to be effective with respect to Customer thirty (30) days after Customer receives notice of such amendment. If Customer objects to any such change in these Terms, Customer may terminate any applicable Service Schedules.
2. Services
(a) Service Schedules. The services to be provided by EasyLink and purchased and paid for by Customer are as set forth in each applicable Service Schedule (as so defined, the “Services”). EasyLink will provide, and the Customer will purchase and pay for, the Services indicated in each Service Schedule for the duration of the term indicated in such Service Schedule. At the end of any such term, the Services will automatically continue on a month to month basis until either party terminates the Service Schedule with at least thirty (30) days prior notice.
(b) Equipment and Software. Unless the applicable Service Schedule provides otherwise, EasyLink will provide all of the software required for Customer to utilize the applicable Services and Customer will be wholly responsible for providing any customer premises equipment necessary for Customer to utilize the Services.
(c) Price. Customer agrees to pay the price indicated for the Services in the applicable Service Schedule. Unless the Service Schedule provides otherwise, EasyLink may change the prices for the Services at any time and any such price change will be effective thirty (30) days after Customer receives notice thereof. Unless the Service Schedule provides otherwise, all prices are quoted in U.S. dollars and Customer must pay all invoices in U.S. dollars.
(d) Payment. Customer must pay all invoices within thirty (30) days of invoice date. Customer will pay interest at the rate of 1.5% per month, or the highest rate permitted by applicable law, whichever is less, with respect to any amounts not paid when due under these Terms. All invoices are fully earned when due and non-refundable when paid. Customer will reimburse EasyLink for all costs, including reasonable attorneys’ fees, court costs, bank charges and other consequential fees and expenses if EasyLink utilizes the services of a collections agency or attorney to collect any amounts due and unpaid hereunder. If any check tendered by Customer is returned for insufficient funds, Customer will pay, in addition to the invoice amount and any interest due, an NSF fee equal to the greater of $30 or five percent of the amount of the check, whichever is greater.
(e) Credit Check. If EasyLink extends credit to Customer, Customer hereby authorizes EasyLink to request, obtain and exchange credit information regarding Customer as needed.
(f) Customer Obligations. Customer: (i) must follow all rules and requirements pertaining to the Services as set forth in any documentation or other written notices provided by EasyLink to Customer, (ii) is solely responsible for the hardware, software and network connectivity required by Customer to connect to, and utilize, the Services except to the extent any such hardware, software or connectivity is expressly provided by EasyLink pursuant to a Service Schedule, (iii) may not utilize the Services in connection with or in furtherance of any activity that violates applicable law or that violates the intellectual property rights of any third party or that creates in any third party a right of action against any person, (iv) may not utilize the Services in any manner that violates EasyLink’s acceptable use policy, (v) may not reverse engineer, decompile or attempt to derive the source code of any software provided by EasyLink in connection with the Services, and (vi) may not rent, lease or resell the Services unless Customer is party to a written agreement with EasyLink that expressly permits such activity.
(g) Termination.
i. Except as otherwise provided in the applicable Service Schedule, Customer may terminate any applicable Service Schedule following thirty (30) days prior notice to EasyLink. At any time when there is no Service Schedule in effect, Customer may terminate this Agreement immediately by giving notice to EasyLink.
ii. EasyLink may terminate this Agreement by giving notice to Customer if (A) Customer fails to pay an invoice when due, (B) Customer violates any of its obligations under this Agreement, (C) Customer violates applicable law through or in connection with its utilization of the Services, or (D) as provided in Section(d) of these Terms.
3. Intellectual Property
(a) EasyLink Intellectual Property. As between EasyLink and Customer, EasyLink owns all patent, copyright, trademark, trade secret and other intellectual property rights that may exist (i) in the Services, the EasyLink equipment and network that may be utilized to provide the Services, (ii) any software or hardware provided by EasyLink to Customer to facilitate Customer’s utilization of the Services, (iii) any domain names provided by EasyLink in connection with the provision of the Services, and (iv) any information, data, trends, analyses, metadata or other data which may be derived from any of the foregoing that is derived or created by EasyLink by reference to the Services, EasyLink’s network and Customer’s usage of the EasyLink Services (subject, at all times, however, to EasyLink’s obligation of confidentiality in favor of Customer as provided in Section 4 below) (all of the foregoing intellectual property being the “EasyLink Transactional IP”).
(b) Customer Intellectual Property. As between Customer and EasyLink, Customer owns all patent, copyright, trademark, trade secret and other intellectual property rights that may exist (i) in any software or hardware provided by Customer in connection with Customer’s use of the Services, (ii) in any data or communications transmitted or processed by Customer through the Services (the “Customer Content”), (iii) in any domain names provided by Customer in connection with the utilization of the Services, and (iv) in any data that identifies Customer or any of Customer’s employees or any of Customer’s vendors, customers or trading partners (all of the foregoing intellectual property being the “Customer Transactional IP”).
(c) Mutual Respect. EasyLink agrees to assert no claim of ownership over the Customer Transactional IP and Customer agrees to assert no claim of ownership over the EasyLink Transactional IP.
4. Data Security and Confidentiality
(a) Confidentiality. In connection with the Services, EasyLink and Customer will each have access to confidential or proprietary information of the other party that is subject to reasonable limitations and restrictions that are intended to maintain the secrecy and confidentiality of such information (as applicable, “Confidential Information”) Each party will not, without the prior written consent of the other party, use or disclose to any Person any Confidential Information of the other party disclosed or made available to it, except for use of such Confidential Information as required in connection with the performance of its obligations or use of the Services hereunder. Each party (as applicable, a “Recipient”) will (i) treat the Confidential Information of the other party (as applicable, a “Discloser”) as secret and confidential, (ii) limit access to the Discloser’s Confidential Information to those of the Recipient’s employees who require it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Discloser’s Confidential Information to any other Person without the prior written consent of the Discloser. Notwithstanding the foregoing, however, the following shall not be considered Confidential Information: (i) any information that the Recipient can demonstrate was within its legitimate possession prior to the time of disclosure by the Discloser; (ii) any information that was in the public domain prior to disclosure by the Discloser; (iii) any information that, after disclosure by the Discloser, comes into the public domain through no fault of the Recipient, (iv) any information that is disclosed to the Recipient without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law. Notwithstanding its obligations of confidentiality in this Agreement, EasyLink may disclose Customer Confidential Information (1) in response to a subpoena or court order, (2) in response to an administrative order or other directive from a governmental entity having jurisdiction over EasyLink, or (3) as otherwise required by applicable law.
(b) Use of Customer Information. In connection with the Services, EasyLink may have access to Customer Transactional IP, including Customer Confidential Information and EasyLink may use such Customer Transactional IP and Customer Confidential Information to the extent such use is required to provide the Services, to maintain the security and integrity of the Services and EasyLink’s networks and to facilitate or confirm EasyLink’s compliance with its legal obligations, provided, however, that EasyLink may not use the Customer Transactional IP or Customer Confidential Information for any other purpose.
(c) Disclosure Notification Laws. Customer must notify EasyLink of any suspected breach in security or integrity affecting Customer’s access to the Services, any suspected breach in security or integrity to the Services or EasyLink’s networks, or any suspected breach in security or integrity in Customer’s Transactional IP. To the extent any applicable law requires Customer to notify other Persons or any suspected breach in security or data integrity involving the personal or transactional data of such Persons which data is contained within the Customer Transactional IP (such laws being “Disclosure Notification Laws”), Customer shall be wholly responsible for its compliance with such Disclosure Notification Laws. To the extent any such Disclosure Notification Laws obligate EasyLink to take any action or provide notification to any person as a consequence of personal or transaction data of any Person contained within the Customer Transactional IP, Customer shall be wholly responsible for taking such action or providing such notification and Customer shall reimburse EasyLink for its reasonable costs and expenses to the extent that EasyLink performs any such action or provides any such notification.
5. Service Errors and Remedies
(a) Service Performance. EasyLink will provide the Services in accordance with EasyLink’s published features and specifications documents and in a manner intended to provide for the timely delivery of communications, the accurate consummation of transactions and the ongoing accuracy and integrity of data and communications processed through its networks and its Services and otherwise as provided by the applicable Service Schedule.
(b) Disclaimer. EasyLink’s Services rely on the interoperability of EasyLink’s Services with the networks of third parties, public switched telephony networks, Internet access providers, international satellite services and other communications facilities and capabilities maintained by Persons outside of EasyLink’s control. EasyLink cannot guarantee that its Services will be available at all times, that its Services will be free from errors, that its networks will be completely secure, or that its Services will be fit for the purpose intended by Customer.
(c) Sole Remedy. Customer’s sole and exclusive remedy, and EasyLink’s sole obligation, for any failure of the EasyLink Services to perform as required by this Agreement, shall be for Easylink at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services, issue Customer a credit in an amount equal to the monthly fees applicable to Customer for the interrupted Service pro rated by the number of hours in which the Services have been interrupted. EasyLink shall have no obligation, however, in respect of any interruption or defects in the Services (i) caused by factors outside of EasyLink’s reasonable control; (ii) that resulted from any actions or inactions of Customer or any third parties; or (iii) that resulted from Customer’s equipment or any third-party equipment not within the sole control of EasyLink.
6. Indemnification
(a) Customer shall defend, indemnify and hold harmless EasyLink, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the “EasyLink Indemnitees”), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the EasyLink Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Customer’s breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Customer Content or Customer’s use of the Services, (iii) violation by Customer or any Customer User of EasyLink’s Acceptable Use Policy or any applicable law, and (iv) claims or actions of third parties arising from Customer’s Content or Customer’s use of the Services.
(b) Subject to Section 7(c), EasyLink shall defend, indemnify, defend and hold harmless Customer, its affiliates and their respective present, former and future officers, directors, employees and agents , and their respective heirs, legal representatives, successors and assigns (collectively, the “Customer Indemnitees”) from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any Customer Indemnitees may suffer, incur or sustain resulting from or arising out of any claim or suit alleging that the Services infringe any U.S. patent, copyright or trade secret existing on the date of the Agreement. EasyLink shall have sole control of its defense and all negotiations for settlement in any matter subject to indemnification under this Section. Notwithstanding the foregoing, however, EasyLink will have no obligation to indemnify any Customer Indemnitee for infringement claims arising from (i) use of the Services with third-party products or services where the third-party products or services cause the infringement, (ii) any modification of the Services not authorized by EasyLink in writing, (iii) the Customer Content or (iv) Customer’s use of any third party software, hardware or services.
(c) In connection with any claim that may be subject to indemnification under this Section, the party seeking indemnification (the “Indemnified Party”) shall provide the party providing indemnification (the “Indemnifying Party”) written notice of such claim promptly after receipt of it, provided, however, that the failure of an Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations except to the extent that the defense of such claim is prejudiced thereby.
(d) If an injunction, decree or judgment is, or in EasyLink’s sole discretion is likely to be, entered providing that Customer may not use the Services as contemplated in this Agreement, EasyLink may, at its sole option and expense, either (i) procure for Customer the right to use the Services or affected part thereof as provided in this Agreement; (ii) replace the Services or affected part thereof with other non-infringing services or modify the Services or affected part thereof so as to be non-infringing; or (iii) terminate the applicable Service Schedule upon written notice to Customer.
(e) EASYLINK’S DEFENSE AND INDEMNIFICATION OBLIGATIONS IN SECTION 6(b) STATE THE ENTIRE LIABILITY AND OBLIGATION OF EASYLINK, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES.
7. Limitations on Liability
(a) EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH IN A SERVICE SCHEDULE, EASYLINK MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND EASYLINK HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. EASYLINK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. EASYLINK CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. EASYLINK WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEMS OR NETWORKS.
(b) NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICE SCHEDULE, OR (EXCEPT AS PROVIDED IN SECTION 7(D)) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
(c) IN NO EVENT WILL EASYLINK’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED BY EASYLINK OR ANY SERVICE SCHEDULE, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE GREATER OF (I) $10,000 OR (II) THE AGGREGATE FEES PAID BY CUSTOMER TO EASYLINK DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
(d) The limitations contained in Sections 7(b) and (c) apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 7(b) and (c) shall not apply to liability arising on account of Customer’s indemnification obligations in Section 6.
8. Duration
(a) Agreement. The Agreement shall begin on the date executed by both EasyLink and Customer and shall continue until no Service Schedules are in effect.
(b) Service Schedules. Unless a Service Schedule provides otherwise, at the end of any term of service provided in the Service Schedule, such Service Schedule will renew for an additional term of service of equal length to the initial term of service provided in such Service Schedule.
9. International Provisions
(a) Scope of this Section. The provisions of this Section 9 apply to (i) any Customer that is organized under the laws of any jurisdiction outside of the United States (a “Non-U.S. Company”), any Customer that has a subsidiary that is a Non-U.S. Company, or any Customer that is controlling, controlled by or under common control with any Non-U.S. Company or any person who is not a U.S. citizen, (ii) any Customer that is receiving or utilizing any Services under this Agreement at a location outside the U.S., or (iii) any Customer that at any time pays EasyLink for any Services using funds originating outside the U.S.
(b) Compliance with OFAC Regulations. Customer represents and warrants that neither the Customer, not any of its subsidiaries, nor any person controlling, controlled by or under common control with the Customer, is (i) on the list of Specially-Designated Nationals and Blocked Persons maintained by the United States Department of the Treasury, Office of Foreign Asset Control (the “US-OFAC”) (currently available at http://treas.gov/offices/enforcement/ofac/sdn/index.shtml) or (ii) is subject to any sanctions programs currently managed by US-OFAC (collectively, the “OFAC Sanctions”). Customer agrees promptly to notify EasyLink in writing if the foregoing representation should ever cease to be true. Customer further agrees to make no payment to EasyLink if such payment would be prohibited by any OFAC Sanctions.
10. Miscellaneous
(a) Independent Contractor. EasyLink and Customer are independent contractors and nothing contained in this Agreement places EasyLink and Customer in the relationship of principal and agent, master and servant, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
(b) Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Georgia, except that all arbitration and related proceedings conducted pursuant to Section 10(c) below, including without limitation confirmation proceedings, shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 10(C) BELOW MUST BE BROUGHT IN A GEORGIA STATE OR FEDERAL COURT LOCATED IN GWINNET COUNTY, GEORGIA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) Mandatory Arbitration. Notwithstanding Section 10(b) above, each party agrees that any dispute between the parties arising out of or relating to this Agreement or in any manner relating to the Services must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as administered by Henning Mediation and Arbitration of Atlanta, Georgia (www.henningmediation.com) or such other recognized provider of arbitration services agreed upon by both parties before a single arbitrator, appointed in accordance with such rules. Any such arbitrator must render a reasoned opinion in writing only where the amount in dispute exceeds One Million Dollars ($1,000,000). The arbitral panel shall be obligated to adjudicate the manner in accordance with the terms of this Agreement, including the substantive laws applicable to the formation, interpretation and enforcement of this Agreement. The arbitral panel shall be permitted to award direct damages in accordance with this Agreement but may not award punitive or exemplary damages. Judgment upon the award may be entered in any court having jurisdiction thereof. The prevailing party in any such arbitration will be entitled to recover its portion of the arbitration fees but prior to the issuance of a final award the parties will split equally all such arbitration fees. Any such arbitration will be held in the metropolitan Atlanta, Georgia area. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section. A party that moves to dismiss an action filed in any court in violation of this Section shall be entitled to recover its reasonable attorneys’ fees and expenses in doing so and in responding to such action.
(d) Headings. The headings herein are for convenience only and are not part of this Agreement.
(e) Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or EasyLink, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and EasyLink. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by EasyLink in its sole discretion, which modifications will be effective upon posting to EasyLink's web site.
(f) Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
(g) Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. EasyLink may give written notice to Customer via e-mail to the Customer’s e-mail address as maintained in EasyLink’s billing records.
(h) Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
(i) Assignment; Successors. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of EasyLink. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. EasyLink may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(j) Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than two years after the cause of action has arisen.
(k) Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, EasyLink’s records of such execution shall be presumed accurate unless proven otherwise.
(l) Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
(m) No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns.
(n) Government Regulations. Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.
(o) Marketing. Customer agrees that during the term of this Agreement EasyLink may publicly refer to Customer, orally and in writing, as a customer of EasyLink. Any other public reference to Customer by EasyLink requires the written consent of Customer.
(p) Telephone Monitoring. To ensure EasyLink’s customers receive quality service, EasyLink randomly may monitor and record phone calls between EasyLink’s customer service and technical support personnel and EasyLink’s customers.
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