Terms and Conditions
General Terms and Conditions
These General Terms and Conditions (“Terms and Conditions”) shall apply to the purchase of Services(s) from GC Pivotal, LLC d/b/a Global Capacity (“Global Capacity”), a Delaware limited liability company, with its principal place of business located at 180 North LaSalle Street, Suite 2430, Chicago, Illinois 60601, and its Affiliates. A party purchasing such Service(s) shall herein be referred to as “Customer” and shall be bound by these Terms and Conditions. These Terms and Conditions are available on Global Capacity’s Website, which is accessible by Customer and, may be modified by Global Capacity at any time without notice. Global Capacity will update changes to these Terms and Conditions on its Website. Such changes shall become effective and binding on Customer immediately upon posting of the modified terms on Global Capacity’s Website. In no event will any change be deemed to affect any existing MSA between Global Capacity and Customer.
Article I. Definitions
1.01 Affiliate means any entity that controls, is controlled by, or is under common control with either Global Capacity or Customer. For purposes of these Terms and Conditions, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of any such person, entity or company whether through the ownership of voting securities, by contract or otherwise.
1.02 Available means that all necessary equipment for Service has been installed and the Service delivered to the Point of Termination performs substantially in accordance with industry specifications.
1.03 Billing Start Date means the date that monthly recurring charges begin accruing.
1.04 Carrier means a common carrier or other telecommunications carrier.
1.05 Circuit means a telecommunications facility connecting two or more Customer or End User locations.
1.06 Customer means any person, group, entity, or party that orders, purchases, or uses Service(s) from Global Capacity for itself or an End User.
1.07 Emergency Maintenance means any maintenance that is necessary to preserve or protect the integrity of Global Capacity network or facilities, or maintenance which if not performed promptly, could result in Service degradation or loss of Service to Customer, its End Users or other users of Global Capacity network.
1.08 End User means any customer of Customer or its Affiliates that is receiving or using Service. An End User may be a person or entity to whom Customer provides telecommunication or related services that utilizes, in whole or in part, Service provided under the terms of these Terms and Conditions.
1.09 Firm Order Commitment or FOC means the form that Global Capacity submits to Customer indicating the scheduled Completion Date.
1.10 Governmental Charges means the charges, whether retroactive or prospective, that Global Capacity is required to collect from Customer in connection with its furnishing Service. The charges result from the application, interpretation, or enforcement of existing, new or revised laws or regulations, and actions taken by federal, state, local or foreign regulatory authorities that directly or indirectly impose costs on Global Capacity. These charges include, but are not limited to, regulatory compliance, TRS, E911, access, reciprocal compensation, franchising, CALEA, USF and similar costs.
1.11 Monthly Recurring Charges means the recurring charges for Services under these Terms and Conditions.
1.12 MSA means any existing, unexpired Master Service Agreement negotiated and executed by and between Global Capacity and a customer.
1.13 Non-Recurring Charges means installation fee(s) and other one-time charges for Service under these Terms and Conditions.
1.14 NOR means Notice of Receipt, which is the email receipt that Global Capacity submits to Customer indicating that it has received an SOF.
1.15 Order Confirmation means the form that Global Capacity submits to Customer indicating that it has accepted the SOF, and the date of the same is sometimes referred to as the “Order Confirmation Date.”
1.16 Order Completion Notice shall mean a written notice from Global Capacity that the Service ordered has been installed by Global Capacity (or its designees) pursuant to the SOF, and has been tested and is functioning properly.
1.17 Point of Termination means the location where Global Capacity’s Service responsibilities end and Customer or End User’s responsibilities begin. The Point of Termination is the interface between Customer and Global Capacity, whether at Global Capacity’s point of presence (the specific location within a local access transport area where Service originates or terminates) or other Global Capacity designated terminal equipment for purposes of interconnection, or at the End User or Customer Premises. Global Capacity will designate the Point of Termination for Service. This may also be referred to as the demarcation.
1.18 Premises mean a physical address where Service is provided and identified as a Point of Termination.
1.19 Scheduled Maintenance means that Global Capacity determines that it is necessary to interrupt or there is a potential for an interruption of Service(s) and Global Capacity will use commercially reasonable efforts to perform maintenance during off-peak hours (midnight to 6:00 am local time).
1.20 Service means dedicated telecommunication products offered by Global Capacity and provided under these Terms and Conditions. Unless indicated to the contrary in an exhibit or addendum to these Terms and Conditions, it is anticipated that all Service provided by Global Capacity shall be provided using the telecommunications network of a third party provider that is not owned or operated by Global Capacity, but where Global Capacity contracts for the use of a portion of the network to provide some or all of the Services called for hereunder (with the remainder of the Services contracted for from additional third party providers). These Terms and Conditions of the Service will be subject to the requirements of the underlying Service providers.
1.21 Service Schedule refers to any Service offered by Global Capacity and its applicable Schedule. All Service Schedules can be found on Global Capacity’s Website or by request.
1.22 Service Order Form (“SOF”) means the form that Customer completes and submits to Global Capacity, either electronically, via email or on-line ordering platform such as Global Capacity’s One Marketplace Exchange (“OMP”), that contains the information necessary, such as Service address, rates, Point of Termination, or Service Term that is necessary for Global Capacity to provision Service.
1.23 Service Outage means an interruption or degradation of Service below industry specifications for the affected Service.
1.24 Service Term means the length of term commitment made by Customer for a Service and established in an SOF.
1.25 Tariff means a schedule of rates, charges and terms of Service filed by Global Capacity, or any third party carrier Service provider to Global Capacity, with the Federal Communications Commission or state regulatory agency with jurisdiction over the Service.
1.26 Taxes means the amounts that Global Capacity is required or permitted by federal, state, local or foreign taxing authorities to collect from Customer in connection with its furnishing services, as well as any other imposition by any governmental authority that has the effect of increasing Global Capacity’s cost of providing Services. Taxes include but are not limited to, personal property taxes on property used to provide Service and sales (or otherwise passed through to Global Capacity by any Service provider), use, receipts, telecommunications, excise, utility or other similar transaction based taxes, however, designated, imposed directly on Service or upon Global Capacity as a result of its provision of Service. Taxes do not include any tax based upon Global Capacity’s net income, net worth, capital structure or payroll.
1.27 Terms and Conditions mean these Terms and Conditions, including any Service Schedules, SOFs, and Tariffs. These Terms and Conditions shall not apply to any existing, unexpired agreements negotiated and executed between the Parties.
1.28 Website means www.GlobalCapacity.com, any related subpages, and successor websites.
Article II. Service
2.01 Availability of Facilities. (a) Global Capacity will provide Services to Customer pursuant to these Terms and Conditions. Service at all times is offered and furnished subject to the availability of facilities, including those provided by third party service providers. All Services are provided on an individual case basis and shall be subject to these Terms and Conditions. Global Capacity may limit or restrict Service, if it determines in its reasonable judgment it is required for management of its network. (b) In order for Global Capacity to provide Services, Customer must submit a completed and valid SOF. Global Capacity will provide an NOR to Customer, which does not constitute acceptance of the SOF, but is intended to confirm the receipt of the SOF. Global Capacity reserves the right to reject an SOF based upon lack of necessary information to process the order, expired quote, rates or offer, lack of facilities or credit concerns regarding Customer. Upon acceptance of the SOF, Global Capacity will issue Order Confirmation to Customer to provide the Services identified in the SOF. (c) Global Capacity will use commercially reasonable efforts to install each Service on or before the estimated Firm Order Commitment date, however, the inability of Global Capacity to deliver the Service by such date shall not be deemed a material breach of these Terms and Conditions or a Default, as the parties acknowledge that Global Capacity cannot fully control the timing of delivery of Service due to such work generally being performed by third party Carriers on their networks, and due to factors such as Force Majeure events or other events beyond the control of Global Capacity. (d) Global Capacity reserves the right to issue revised pricing or revised Firm Order Commitments, should Customer request changes after the Firm Order Commitment date is communicated to Customer. (e) Delay in Start Date. Customer may request a delay in the Service start date with written notification provided that: (i) the request is made no later than ten (10) business days prior to the FOC date; (ii) the aggregate number of days requested for such delay request does not exceed thirty (30) calendar days; and (iii) the number of delay requests is one (1). Customer is responsible for any third party charges Global Capacity experiences as a result of Customer’s delay request for facilities or other changes. Customer shall be assessed a $250 change order charge by Global Capacity for each change requested after issuance of the FOC date. (f) Delay in Disconnect Date. Customer may request a delay in the Service end date via written notification to Global Capacity (such notification being a “Disconnect Order”) provided that: (i) the request is made no later than ten (10) business days prior to the Service end date identified in the FOC (the “Disconnect Date”); (ii) the aggregate number of days requested by such delay request does not exceed sixty (60) calendar days; (iii) the aggregate number of delay requests is three (3) or less per SOF; and (iv) Global Capacity shall not be obligated to grant such delay if the third party carrier is not available to extend the disconnection date.
2.02 Special Construction and Acquisition of Telecommunication Facilities. (a) The provision of Services may require special construction of facilities and equipment by Global Capacity or its third party service providers or contractors, including but not limited to, entrance facilities or cross connections (generally referred to as special construction, and acquisition of telecommunication facilities). Notwithstanding any other provision of these Terms and Conditions, if Global Capacity is required to specially construct or acquire telecommunication facilities from a third party, or both, in order to provide Service, and the costs thereof are not included in the Monthly Recurring Charge or SOF for the affected Service, the Parties will agree in writing on the charges applicable to the installation prior to the undertaking of any activity by Global Capacity which will be incorporated into these Terms and Conditions, and failing to agree, Global Capacity shall have no obligation to provide the Service which would require such additional facility usage. Customer is responsible for payment of all Monthly Recurring and Non-Recurring Charges for special construction and acquisition of telecommunication facilities set forth in written agreement between Global Capacity and Customer. (b) Customer may elect to cancel Service involving special construction or acquisition of telecommunication facilities from a third party after the Order Confirmation but prior to the FOC date. In such case, Customer will reimburse Global Capacity for all unpaid costs and expenses incurred by Global Capacity in connection with the special construction or acquisition up to the time of cancellation. This payment obligation is in addition to any other rights and remedies Global Capacity may have at law, or as provided in these Terms and Conditions including Order Cancellation Fees and Charges (see Section 5.04 hereof). (c) Customer’s obligation to remit payment for the Services is independent of Customer’s obligation to have facilities in place on its side of the Point of Termination to support Services. Customer shall be responsible to pay Global Capacity all charges applicable to a Service regardless of whether Customer may or may not use the Service due to factors including unavailability, incompatibility, delay in installation or other impairment of interconnection, CPA or Customer, or End User equipment or facilities. Upon completion of installation and the underlying carrier testing of the Service ordered in any SOF, Global Capacity will deliver to Customer an Order Completion Notice. Upon receipt of the Order Completion Notice, Customer shall have a period of one (1) business day to confirm that the Service has been installed and is functioning properly. Unless Customer delivers written notice to Global Capacity within such one (1) business day period that the Service is not installed in accordance with the SOF and is not functioning properly, Customer shall be deemed to have confirmed that the Service has been installed and is functioning properly upon expiration of such one (1) business day period. In the event that Customer notifies Global Capacity within such one (1) business day period that the Services is not installed in accordance with the SOF and is not functioning properly, then Global Capacity shall correct any deficiencies in the Service.
2.03 Tariff. These Terms and Conditions incorporate any applicable Tariff, which may be modified by Global Capacity from time to time in accordance with law and affect the Service being furnished to Customer. Provisions in these Terms and Conditions may supplement but not vary from those terms and conditions established in a Tariff. In the event that Global Capacity withdraws or cancels a Tariff during the Term of these Terms and Conditions, then the terms and conditions of the Tariff will be incorporated into and made part of these Terms and Conditions as of the effective date of such cancellation.
2.04 Resale of Services. (a) Customer is the customer-of-record for Services acquired under these Terms and Conditions. If Customer resells Service or incorporates Services into service it provides to End Users, Customer will be solely responsible for supporting its End Users with respect to all matters pertaining to its services, including without limitation, service provisioning, billing and collection, dispute resolution and crediting. Global Capacity will have no obligation to interact with End Users, nor shall Global Capacity incur any liability to them for Global Capacity’s performance under these Terms and Conditions. (b) Customer is responsible for: (1) applying and enforcing all applicable provisions of these Terms and Conditions on its End Users; and (2) any liability arising from a violation of a Customer obligation under these Terms and Conditions. (c) Customer is solely responsible for providing all required notices to its End Users affected by a Service interruption, suspension or disconnection by Global Capacity related to Customer’s failure to comply with the terms of these Terms and Conditions, such as, non-payment or material breach. (d) Customer is responsible for payment of all charges for Services provided by Global Capacity to it or its End Users. Customer may not short pay, withhold payments or otherwise fail to pay all amounts due to Global Capacity because of acts or omissions of its End Users. This obligation includes the duty to pay End User amounts related to, but not limited to, the following: (1) fraud, misuse, or abuse; (2) non-payment by any End User; or, (3) voluntary or involuntary bankruptcy or assignment for the benefit of creditors by any End User. (e) Neither Global Capacity nor Customer, nor their Affiliates, respective contractors, or agents, may use the other party’s trademarks, Service marks, logos or other proprietary trade dress, in connection with the sale of products or services, or in any advertising, press releases, publicity matters or other promotional materials, unless the other party has given its written consent for such use, which consent the other party may grant or withhold in its sole discretion. (f) Neither Global Capacity nor Customer may imply any direct or indirect affiliation with or sponsorship or endorsement of its services or products by the other party. However, Global Capacity may advise third parties that Customer is one of its customers.
2.05 Customer Responsibilities. (a) Customer shall be held responsible for compliance with all Customer obligations set forth in these Terms and Conditions. (b) Customer is responsible for ensuring compatibility, installation, and maintenance of equipment and systems provided by Customer and any End User with the interface equipment and Services provided by Global Capacity and/or sanctioned by Global Capacity. Customer is responsible for all equipment, systems and facilities on its side of the Point of Termination. (c) Customer is responsible for ensuring that the Service as ordered via the SOF meets its requirements. (d) Customer is responsible for providing Global Capacity, its employees, independent contractors and agents, with reasonable access to Customer and End User Premises to provision, test, inspect, maintain and repair equipment and Service or retrieve Global Capacity Service-related equipment situated on Customer or End User Premises. If access rights are not held by Customer, Customer will acquire them so that Global Capacity timely can perform these undertakings. Global Capacity shall not be responsible under any circumstances for interruptions in Service for any time period that Global Capacity is denied access to the premises and/or equipment in question. (e) Customer is responsible for providing all necessary information to provision Services in a timely manner and ensure that all information provided is accurate and updated when necessary or when there is a material change in the Premises, Service requirements, or any other condition that may affect delivery of Service by Global Capacity.
2.06 Customer Orders to Disconnect Services. Customer may request, in accordance with these Terms and Conditions, that Global Capacity disconnect Service at any time by submitting a valid request to Disconnects@GlobalCapacity.com thirty (30) calendar days prior to the requested Disconnect Date in accordance with Global Capacity’s then current policies and procedures. Any disconnect request submitted after 3:30 p.m. CST will be processed the following business day. Global Capacity will then forward a written confirmation of request to disconnect, confirming the request to disconnect the Service and setting forth the applicable Early Termination Fees then due and payable within thirty (30) days following the date of invoicing thereof to Customer.
2.07 Customer Orders to Cancel SOF. Customer may cancel any SOF prior to the Billing Start Date, subject to the obligation of Customer to pay the applicable cancellation fees and charges as further set forth in Section 5.04 herein.
Article III. Payment, Billing and Financial Information
3.01 Billing. All billing for Monthly Recurring Charges is in advance; and, Non-Recurring Charges may be billed either in advance or in arrears as determined by Global Capacity. All invoicing commences on the Billing Start Date applicable to the Service in question. If the Billing Start Date occurs on a date other than the first day of the monthly billing period, or if Service is discontinued on a day other than the first day of the monthly billing period, Monthly Recurring Charges will be prorated using a thirty (30) day calendar month. Global Capacity will invoice Customer for the first two (2) full months of Service in advance.
3.02 Customer Payment Obligations. Customer must pay all invoiced charges for Service without deduction or setoff within thirty (30) days of the date of an invoice (“Payment Period”). All payments will be made via wire transfer in accordance with the instructions provided by Global Capacity unless alternative arrangements have been mutually agreed to by Global Capacity and Customer in advance in writing. Global Capacity may permit payment via check in its sole discretion.
3.03 Late Payments. Payments not received within the Payment Period will be considered past due. Past due amounts accrue a late payment charge equal to the lesser of one and one half percent (1½%), or the maximum legal rate permitted by law, of all outstanding balances as of the invoice date (“Late Payment Charges”). Late Payment Charges will be carried forward on all subsequent monthly invoices and added to the outstanding balance. Customer shall be responsible for Global Capacity’s costs of collection (including reasonable attorneys' fees) of undisputed overdue amounts from Customer. Failure to make full payment within the Payment Period will be considered a material breach of these Terms and Conditions.
3.04 Deposits and Additional Assurances of Performance. (a) Global Capacity reserves the right at all times to assess the financial stability and ability of Customer to pay for Services in a timely manner. Global Capacity may request at any time in its sole discretion that Customer provide information reasonably necessary to determine the current financial standing of Customer, including: (1) credit history reports; (2) monthly, quarterly or annual financial statements, both audited and unaudited; and (3) current vendor or banking references. Global Capacity may, based upon the information gathered or other publicly available information, change its payment arrangements with Customer, including but not limited to requirement of a deposit, letter of credit, or other adequate assurance of performance in order to continue to provide Service to Customer. (b) Customer is obligated to provide the requested financial information referenced in Section 3.04(a) or deposit via wire transfer, letter of credit or other adequate assurance of performance to Global Capacity within five (5) days of written request. (c) The failure to make full payment of outstanding balances within the Payment Period or provide the information, deposit, letter of credit or other adequate assurance of performance within the notice period provided in Section 3.04(b) may result in any of the following actions to be taken by Global Capacity upon two (2) days’ written notice: (1) suspension, disconnection or termination of Services; (2) placement of a hold on all pending SOFs, quotes, installations, or other provisioning activities; (3) refusal to accept new SOFs or requests for quotes; and (4) suspension of all access to Global Capacity on-line ordering, quoting and systems, including OMP, CLM or Lattis. Global Capacity does not waive any rights, and no waiver should be inferred or implied, where it determines whether to enforce any provision of this Section 3.04, or to exercise any option permitted herein. (d) Global Capacity may exercise any of its rights under Section 3.04 where it determines that there is a risk that Customer will be unable or unwilling to pay for any Service, or is concerned about Customer’s ability or willingness to pay for any Service. These events include but are not limited to, failure to pay invoices when due, Global Capacity’s belief of a material change in Customer’s financial condition, or a material increase in Customer’s anticipated or actual use of Services.
3.05 Bill Disputes and Previous Amounts Not Invoiced. (a) Customer may dispute an invoice or charges by sending written notice to Global Capacity within the Payment Period of the dispute (“Dispute Notice”). The Dispute Notice must contain the following information: (1) Circuit identification numbers for each Circuit with disputed charges; (2) billing information related to the dispute; (3) a full and complete explanation of the basis of the disputed charge; and (4) copies of all relevant documentation. Customer may withhold payment of disputed charges only. Any payment of disputed amounts within the Payment Period will not constitute a waiver of Customer’s rights to dispute charges under these Terms and Conditions. In no event may Customer dispute a charge more than ninety (90) days after the date that the charge first appeared on a Customer invoice. Any dispute not made in the manner and time required herein is waived by Customer. (b) Global Capacity will investigate and promptly resolve Customer’s dispute within thirty (30) days of Global Capacity’s receipt of the Dispute Notice. Dispute Notices that do not contain the information necessary to resolve the dispute will be denied. Customer may resubmit a dispute so long as the resubmitted Dispute Notice is timely as set forth in Section 3.05(a). Customer shall cooperate and provide all information requested by Global Capacity to resolve the dispute. Global Capacity may in good faith reject the Dispute Notice, in whole or in part, and will advise Customer of the basis for its determination. If Customer is not satisfied with Global Capacity’s determination, then Customer may elect to further dispute the matter in accordance with the Dispute Resolution provisions of these Terms and Conditions. (c) If a Dispute Notice is denied and Global Capacity determines that the amounts withheld by Customer were legitimate charges, then Customer must pay the total outstanding amounts due and owing, including Late Payment Charges, within five (5) days of Customer’s receipt of the notice from Global Capacity denying the Dispute Notice. (d) Global Capacity may invoice Customer for amounts not previously invoiced provided such amounts are invoiced within two (2) years of the date Service was provided or the amounts should have been invoiced, whichever date is later. (e) Global Capacity will use commercially reasonable efforts to apply credits to Customer’s account, including credits related to Dispute Notices, on the monthly invoice following the Service Outage for which credits are due or the resolution of the Dispute Notice as provided herein.
Article IV. Taxes and Surcharges
4.01 Manner of Assessment. All Service charges, whether Non-Recurring Charges, Monthly Recurring Charges or other charges, are exclusive of and do not include Taxes or Governmental Charges.
4.02 Payment Obligation. Customer is obligated to pay all Taxes and Governmental Charges and comply with any changes to Taxes and Governmental Charges. Global Capacity may revise terms or conditions of Service as a result of a change in Governmental Charges. In the event that Global Capacity revises terms or conditions of Service as a result of a change in Governmental Charges that is not mandated by rule, order, statute or law, then Global Capacity will provide Customer with thirty (30) day written notice of such change and Customer may elect to discontinue, without further termination liabilities or other payment obligations (except for charges incurred to date of such termination or discontinuance), the affected Service by sending written notice to Global Capacity at least thirty (30) days prior to its intent to discontinue such Service; provided however, should Global Capacity rescind the revised terms or conditions of Service that were set forth in the prior notice of change to Customer, then the termination by Customer as set forth in this sentence shall be rescinded and the Service shall continue to be provided and billed by Global Capacity, as provided prior to the delivery of the notice of the revised terms or conditions of Service.
4.03 Responsibilities. Global Capacity and Customer shall each be responsible for any sale, lease, or use of personal property, ad valorem or other similar taxes on property it owns or leases. Global Capacity and Customer are each responsible for properly reporting owned property to the appropriate taxing authorities and neither Global Capacity nor Customer will be responsible for either reporting or paying personal property or ad valorem taxes owed by the other party. In the event that a third party carrier or Service provider passes through to Global Capacity additional charges, surcharges or taxes applicable to the underlying Service provided to Customer (however characterized by the third party carrier or Service provider), Global Capacity will pass through such additional charges, surcharges or taxes to Customer without mark-up and Customer will be obligated to pay such amounts. Global Capacity may upon request provide to Customer documentation to support such additional charges, surcharges or taxes.
4.04 Tax Exemption Certificate. Customer is at all times obligated to pay its Taxes and other Governmental Charges. In the event that Customer believes it is exempt from such Taxes or other Governmental Charges, Customer may provide Global Capacity with a current certificate demonstrating its exemption from the applicable Taxes. Global Capacity will cease the imposition of such Taxes as of the date that Global Capacity determines that the exemption certificate demonstrates that Customer is exempt from the applicable Taxes (“Exemption Certificate Date”). Global Capacity is not obligated to credit or otherwise waive Customer’s obligation to pay Taxes prior to the Exemption Certificate Date, and Customer must look to the proper taxing authority for refund or credit of the Taxes paid on Customer’s behalf as its sole and exclusive remedy with respect to Taxes or other Governmental Charges passed through to Customer by Global Capacity prior to the Exemption Certificate Date. Global Capacity shall have the right to require that Customer provide on an annual basis proof of continued exemption from applicable Taxes, and failure to provide such proof shall provide to Global Capacity the right to thereafter assess the corresponding Taxes and Governmental Charges until a subsequent appropriate exemption certificate is provided.
4.05 Audits. Global Capacity and Customer will each fully cooperate with the other to provide documentation and support necessary to comply with any Tax audit by a taxing authority.
Article V. Service Term and Termination
5.01 Service Term. The initial Service Term for a Service shall be the term specified in the SOF for the accepted Service (“Initial Service Term”), and shall commence on the Billing Start Date. The Minimum Service Term for each Service shall be twelve (12) months from the Billing Start Date, unless otherwise agreed upon by the Parties. Upon expiration of the Initial Service Term, Global Capacity will continue to provide Service on a month-to-month basis on those rates and terms under the Initial Service Term (each such monthly renewal period individually or collectively, as the case may be, is referred to as the “Renewal Service Term”), subject to Global Capacity’s right to raise rates at any time upon thirty (30) days’ prior written notice (including if notice is delivered during the Initial Term for the Service).
5.02 Termination and Discontinuance of Service. (a) Global Capacity may terminate any Service upon an event of “Default” by Customer (as defined in these Terms and Conditions), where such Default is not cured within ten (10) days of delivery of written notice to Customer by Global Capacity of Default. Termination of any Service is in addition to, and not in limitation of, any other remedy Global Capacity may have at law or equity. The obligations of Customer under these Terms and Conditions shall survive any termination of Service. (b) Either Global Capacity or Customer may terminate Service(s) provided hereunder if the other becomes insolvent, liquidates, is adjudicated bankrupt, makes an assignment for the benefit of creditors, invokes any provision of law for the relief of debtors or initiates any proceeding seeking protection from its creditors. (c) If Customer plans to terminate Service(s) (other than under Section 5.01) or discontinue a Service for any reason, Customer must provide Global Capacity with written notice in accordance with these Terms and Conditions no less than thirty (30) days prior to Customer’s termination of Service. For a request to disconnect or terminate Service, the notice must be in the form required by Global Capacity at the time and in accordance with its policies and procedures for discontinuance of Service, which may include: (1) the Circuit ID for the requested Service; (2) the requested date for discontinuance; and (3) the Service address location for the Circuit(s). A communication to discontinue a Service which does not comply with Global Capacity’s standard policies and procedures under these Terms and Conditions, or which fails to include all essential information, or which is a termination of the Service where there is no contractual right to terminate, will be ineffective and charges will continue to accrue. (d) Customer will be liable for early termination charges under these Terms and Conditions for discontinuing Service prior to the end of the Term or Service Term. Unless stated otherwise, the early termination fee (“Early Termination Fee”), which is not a penalty, but a reasonable method of calculating Global Capacity’s damages that are otherwise impossible to estimate, is determined by multiplying the Monthly Recurring Charge for the Service by the remaining months in the Service Term. (e) Upon termination or expiration of Service, Customer shall immediately and without further notice pay to Global Capacity all amounts outstanding, including all unpaid charges, unbilled amounts, charges associated with CPA, Late Payment Charges and Early Termination Fees. Termination of Service will not suspend or discontinue the calculation and accrual of Late Payment Charges. (f) Where Global Capacity has coordinated third party telecommunication facilities, Customer will at all times remain obligated to pay for charges and termination fees associated with third party telecommunication facilities. Customer will cooperate with Global Capacity to provide all necessary documentation and forms requested by the third party telecommunications Service provider to disconnect, terminate or re-assign telecommunication facilities being provided for the benefit of Customer.
5.03 Termination of Customer Provided Access. Customer may integrate Service with Customer Provided Access (“CPA”) in which Global Capacity will not be the customer-of-record. Customer must first provide Global Capacity with the written Disconnect Firm Order Confirmation (“DFOC”) notice(s) from the applicable CPA provider. If Customer fails to provide Global Capacity with the DFOC notice, then, in addition to any other termination charges, Customer will remain liable for all applicable MRCs and charges for the connectivity to CPA with respect to a CPA that Customer directs to be disconnected or is otherwise subject to an order for cancellation, regardless of whether or not it is useable by Customer. Customer will at all times cooperate to provide and execute the documents and forms necessary to disconnect CPA. Customer agrees and acknowledges that it at all times will remain solely obligated to pay all charges, fees and costs associated with CPA, including but not limited to, charges, fees and costs associated with termination or early termination of CPA and the cost of the entire Circuit that is connected up to the CPA.
5.04 Order Cancellation Fees and Charges. (a) Customer may cancel a SOF before the Billing Start Date by providing Global Capacity with written notice of cancellation (“Order Cancellation”). If Customer cancels an SOF within five (5) business days after the Order Confirmation Date, Customer will not be charged any Cancellation charges for the terminated SOF. If Customer cancels an SOF more than five (5) business days after the Order Confirmation Date, but within ten (10) days prior to the Billing Start Date, Customer must pay: (i) the charge stated below for each individual Service ordered in the SOF: (A) Circuit Speed of 56 Kbps to 30 Mbps - $300.00; (B) Circuit Speed of 34.368 Mbps to 150 Mbps - $1,000.00; (C) Circuit Speed of 155.52 Mbps to 10 Gbps - $1,200.00; plus (ii) the Non-Recurring Charges related to the Order in question; plus (iii) one (1) month’s Monthly Recurring Charges related to the Service Order in question. Similarly, if Global Capacity terminates a SOF prior to the Billing Start Date, but after the Order Confirmation Date due to Customer’s breach of these Terms and Conditions, or Customer cancels an expedited order at any time in the process prior to the Billing Start Date, then Customer must pay Global Capacity the amount specified in the preceding sentence for the Service Order in question. In the event of an Order Cancellation with a Circuit speed other than enumerated above, the cost of cancellation of the Service shall be the fixed cost per Circuit as is Global Capacity’s customary fixed cost charge from time to time and in addition the cost of cancellation shall include the amounts set forth in subparagraphs (ii) and (iii) in this Section 5.04(a) as detailed above. Customer must pay charges for Order Cancellation requests as provided above no later than thirty (30) days following the date of cancellation of the Service Order in question. Global Capacity may decide to impose new policies, procedures or charges, or revise same, at any time during the Term of these Terms and Conditions or any Service Term by posting the changes on its Website. (b) Customer may cancel by written notice an expedited order at any time prior to Billing Start Date for such Service (“Cancelled Expedite”). Customer must pay Global Capacity an amount for each Cancelled Expedite Circuit equal to the then current charges for Order Cancellation, plus the Non-Recurring Charges for the Service (regardless of whether such charges were waived), plus one (1) month of Monthly Recurring Charges for the Service.
Article VI. Representations and Warranties
6.01 Standing and Authority. Global Capacity and Customer each represent and warrant it is, and will remain, duly organized, validly existing, and in good standing under the laws of the place of its origin, and possesses all the authority necessary to enter into and perform its obligations under these Terms and Conditions.
6.02 Customer. Customer represents and warrants that: (1) services it furnishes to its End Users are designed, installed, provided and maintained in compliance with applicable legal requirements and those established in these Terms and Conditions; (2) all Customer traffic, data or communications handled by Global Capacity is compliant with these legal requirements and those established in these Terms and Conditions; and (3) it possesses, and will maintain, all licenses, approvals, registrations and certifications required by regulators or other third parties to furnish its services.
6.03 Exclusion of Other Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.01, GLOBAL CAPACITY MAKES NO WARRANTY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS, NON-INFRINGEMENT, NON-INTERFERENCE OR FITNESS FOR ANY PURPOSE, OF ANY SERVICE PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES BY GLOBAL CAPACITY ARE HEREBY EXCLUDED AND DISCLAIMED.
Article VII. Default
7.01 Default Events. (a) Global Capacity or Customer is in Default under these Terms and Conditions if any of the following occurs: (i) A party violates any legal requirements relating to the provision or receipt of Service, and the violation is not remedied within thirty (30) days of receipt of written notice of the violation; (ii) Customer fails to make full payment of outstanding amounts due to Global Capacity within the Payment Period; or (iii) A party fails to perform a material obligation under these Terms and Conditions, and the failure is not remedied within thirty (30) days of receipt of written notice of the failure (except for a payment default under Section 7.01(a)(ii) or Section 3.02 for which no cure period applies). (b) A Service Outage, Emergency Maintenance, or Scheduled Maintenance is not a Default that would entitle Customer to terminate these Terms and Conditions or the affected Service.
7.02 Termination for Default. In addition to remedies available at law or in equity, the non-defaulting party may terminate any Service, in whole or in part, for a Default.
7.03 Payment or Other Default. A Default under Article 3 or Section 7.01(a)(ii) or any Service will entitle Global Capacity to collect, and Customer will be obligated to pay, Early Termination Fees in addition to pursuing other available remedies at law and equity.
Article VIII. Confidential Information and CPNI
8.01 Confidential Information Definition. “Confidential Information” shall mean any and all information which is disclosed by Global Capacity or Customer to the other, except for information which the receiving party can demonstrate: (a) is or becomes available to the public through no breach of these Terms and Conditions; (b) was previously known by the receiving party without any obligation to hold it in confidence; (c) is received from a third party free to disclose such information without restriction; (d) is independently developed by the receiving party without the use of confidential or proprietary information of the disclosing party; (e) is approved for release by written authorization of the disclosing party, but only to the extent of such authorization; or (f) is required by law or regulation to be disclosed or is disclosed in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof, but only to the extent of and for the purposes of such required disclosure or order and, if permitted by applicable law, the receiving party first notifies the disclosing party and permits the disclosing party to seek an appropriate protective order.
8.02 Use of Confidential Information. With respect to any Confidential Information disclosed under these Terms and Conditions, Customer agrees that it shall: (a) use the Confidential Information only for the purpose of conducting business with and/or obtaining Service from Global Capacity and in furtherance of any such opportunity which the Parties mutually agree to explore; (b) hold the Confidential Information in confidence, exercising a degree of care not less than the care used by Customer to protect its own proprietary or confidential information; (c) restrict disclosure of Confidential Information to anyone other than Customer and not disclose it to any other third party without the prior written consent of Global Capacity; and (d) copy the Confidential Information only as necessary for Customer who is entitled to receive it, and ensure that all confidentiality notices are reproduced in full on such copies. Customer agrees to maintain in confidence, and not to disclose to third parties or use, except for such use as is expressly permitted herein, Global Capacity’s Confidential Information and any other information and materials provided by Global Capacity in connection with these Terms and Conditions, including but not limited to the content of these Terms and Conditions and any Service(s).
8.03 Return or Destruction. All Confidential Information obtained by Customer through its relationship with Global Capacity and use of Global Capacity’s Service(s) shall be deemed the property of Global Capacity and, upon request, the Customer will return to Global Capacity all Confidential Information received in tangible form, or will destroy all such Confidential Information and certify in writing to Global Capacity that all such information has been destroyed. If User loses or makes an unauthorized disclosure of Global Capacity’s Confidential Information, it shall notify Global Capacity immediately and use all reasonable efforts to retrieve the lost or wrongfully disclosed information.
8.04 Irreparable Harm. Customer agrees that an impending or existing breach of the provisions herein would cause Global Capacity irreparable injury for which it would have no adequate remedy at law, and that Global Capacity shall be entitled to equitable relief including immediate injunctive relief prohibiting such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of these Terms and Conditions, but shall be in addition to all other remedies available at law or equity.
8.05 No Transfer. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise transferred by this Section or any disclosure hereunder, except for the limited right to use such Confidential Information in accordance with these Terms and Conditions.
8.06 CPNI. Customer Proprietary Network Information (“CPNI”) is Customer information that is acquired during the process of providing telecommunication services to Customer or End Users. Global Capacity and Customer each agree and warrant to the other that it will comply with all federal regulations regarding the management and retention of CPNI. Customer hereby consents to Global Capacity using Customer CPNI, and/or sharing it with its authorized agents and employees, for the purpose of furnishing Customer with information regarding its telecommunication products and services. Customer’s approval of the use of CPNI will remain in effect during the Term of these Terms and Conditions and any Service Term, unless and until Customer directs otherwise. Customer may revoke its approval to use CPNI for the purpose described herein by contacting Global Capacity at any time, and at no cost to Customer, by emailing CustomerCare@GlobalCapacity.com; provided, however, that notwithstanding anything to the contrary contained herein or in any NDA between Customer and Global Capacity, Global Capacity shall be permitted to retain CPNI and any other Confidential Information during the Term hereof and any renewal periods with respect to any of the Circuits put in place during the Term hereof, for a period extending until five (5) years following the date of disconnection of the last Circuit installed during the Term hereof, with such information to be retained by Global Capacity for archival purposes.
8.07 Term. Global Capacity and Customer agree that the confidentiality obligations set forth in this Article VIII shall apply during the Term of these Terms and Conditions and for a period of five (5) years thereafter. Notwithstanding the foregoing, the confidentiality obligations of this Article VIII shall be superseded by the terms of any Non-Disclosure Agreement executed by and between Global Capacity and Customer.
Article IX. Indemnification and Limitation of Liability
9.01 Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS, GLOBAL CAPACITY SHALL NOT BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST DATA, LOST REVENUES OR COST OF PURCHASING REPLACEMENT SERVICES) ARISING OUT OF OR RELATING TO SERVICES SUPPLIED UNDER THESE TERMS AND CONDITIONS. GLOBAL CAPACITY SHALL NOT BE LIABLE TO CUSTOMER FOR ANY ACTUAL DAMAGES IN EXCESS OF THE AGGREGATE AMOUNT GLOBAL CAPACITY, THREE (3) MONTHS PRIOR TO THE DATE OF THE ALLEGED BREACH OR INJURY, COLLECTED FROM THE CUSTOMER WITH RESPECT TO THE SERVICES DELIVERED HEREUNDER WHICH CREATED THE LIABILITY. THIS LIMITATION SHALL APPLY REGARDLESS OF FORESEEABILITY OR WHETHER DAMAGES ARE CAUSED BY NEGLIGENCE, WILLFUL MISCONDUCT, OR WRONGFUL ACT ARISING FROM, OR RELATED TO, THESE TERMS AND CONDITIONS. BY ACCEPTING THESE TERMS AND CONDITIONS AND REMAINING A CUSTOMER, CUSTOMER MANIFESTS ITS ACCEPTANCE OF THIS LIMITATION ON ACTUAL DAMAGES AS FAIR AND REASONABLE.
9.02 Indemnification. (a) Each Party shall indemnify, defend, release and hold harmless the other Party, its employees, directors, members, managers, officers, and agents, from any suit, proceeding or other claim by a third party for damages, costs, and expenses (including reasonable attorneys’ fees and costs) arising from damage to tangible property, personal injury or death caused by the Indemnifying Party’s gross negligence or willful misconduct. In the event a claim relates to the gross negligence of both Parties, the relative burden of the claim shall be attributed equitably between the Parties in accordance with the principles of comparative gross negligence. (b) Customer shall indemnify, defend, release and hold harmless Global Capacity, its employees, directors, members, managers, officers, and agents, from any suit, proceeding or other claim by a third party damages, costs, and expenses by third parties and expenses (including reasonable attorneys’ fees and costs) arising from damage to tangible property, personal injury or death caused by the Customer’s gross negligence or willful misconduct. Customer shall defend and indemnify Global Capacity, its employees, directors, members, managers, officers, and agents, from and against any suit, proceeding or other claim, damages, costs, and expenses (including reasonable attorneys’ fees and costs) that is caused by, arises from, or relates to (a) representations regarding the nature of Customer’s or End Users’ traffic; (b) any use or resale of Service by Customer, End Users, or others; and (c) Customer’s violation of any of its representations and warranties under these Terms and Conditions including without limitation, claims of libel, slander, unauthorized use of copyright, trademark, or other intellectual property by Customer or the business activities and practices of Customer arising from Customer’s use of the Service. (c) Customer will defend and indemnify Global Capacity, its employees, directors, members, managers, officers, and agents, from and against any such suit, proceeding or claim, if Service is provisioned with Customer provided designs or specifications, or is used in combination with Customer provided hardware, software or other materials or other services, and the Service, or Service as combined, becomes the subject of a suit, proceeding or other claim by an entity (not an Affiliate of Global Capacity or Customer) alleging that the Service infringes any United States issued patent, trademark or copyrights of such entity. (d) The indemnification obligations of Global Capacity hereunder shall in no event exceed an amount equal to the amount of payments made to Global Capacity from Customer pursuant to these Terms and Conditions.
9.03 Indemnification Process. A Party that receives a claim, demand or lawsuit which is subject to the indemnification obligations under Section 9.02 of these Terms and Conditions (an “Indemnified Claim”) shall be referred to as the “Indemnified Party”. The Indemnified Party will immediately notify the other Party (the “Indemnifying Party”), and in no event more than five (5) business days after learning of the Indemnified Claim, provide to the Indemnifying Party all documentation, service of process, or written demands relating to the Indemnified Claim. A Party’s obligations of indemnity under these Terms and Conditions shall be subject to the following: (a) the Indemnified Party shall take all steps reasonably requested by the Indemnifying Party, at the Indemnifying Party’s expense, to mitigate any Indemnified Claim; (b) the Indemnifying Party shall have the right to control and direct the defense of the Indemnified Claim, at the Indemnifying Party’s expense, but shall keep the Indemnified Party up to date with respect to the status of the Indemnified Claim; (c) the Indemnifying Party shall not settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate such Indemnified Claim unless the Indemnifying Party has given the Indemnified Party reasonable prior written notice thereof and such settlement, compromise, consent or termination includes a release of the Indemnified Party from any liabilities arising out of such Indemnified Claim and does not require a payment by the Indemnified Party; (d) the Indemnifying Party will not permit any such settlement, compromise, consent or termination to include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of the Indemnified Party without the Indemnified Party’s prior written consent, such consent not to be unreasonably withheld; and (e) the Indemnified Party shall fully cooperate (to the extent that such cooperation is reasonable), at the Indemnifying Party’s expense, with the Indemnifying Party in such defense. Failure of the Indemnified Party to provide timely notice of a claim does not relieve the Indemnifying Party of the duty to indemnify, except to the extent that the Indemnifying Party can show that the delay materially and adversely prejudiced the Indemnifying Party.
9.04 Service Credits and Liability Limits. (a) Notwithstanding anything to the contrary contained herein, Customer’s sole remedy for any failure of Service, Service Outage, Scheduled Maintenance or Emergency Maintenance is the right to receive Service Outage credits, if any, due under these Terms and Conditions. The foregoing limitation and the limitation in Section 9.01 applies to all causes of action and claims irrespective of their nature, including breach of contract, breach of warranty, strict liability, negligence, misrepresentation or any other tort. (b) Credits for Service Outage for Service that is provided and billed on a flat rate basis for a minimum period of at least one (1) month, and beginning on the Billing Start Date, shall in no event exceed an amount equivalent to the Monthly Recurring Charge for the Service during the period of Service during which the event that gave rise to the claim for a credit occurred. A credit allowance, unless otherwise expressly provided by an Exhibit or Addendum hereto, is applied against the Monthly Recurring Rate specified on the SOF for the Service and is dependent on the length of the Service Outage. Only those facilities that experienced a Service Outage will receive a credit. Credits are not applied, and Customer is not eligible for, Service Outages due to Scheduled Maintenance, Emergency Maintenance, or Force Majeure. (c) Credits for Service Outage are subject to the terms of the applicable Service Exhibit or Addendum, as amended by Global Capacity from time to time upon thirty (30) days written notice to Customer. In the absence of an Exhibit or Addendum for the affected Service, credits for Service Outage shall be calculated using a thirty (30) day period for Service Outages that last longer than twenty-four (24) hours and will be calculated as follows: 1/30th of the Monthly Recurring Charge for the affected Service for each hour or part thereof of the Service Outage. (d) The following standards apply for Service levels for the Circuits absent other agreement by Exhibit or Addendum: Type 1: four (4) hour MTTR with the following Network Availability for the following Circuits: DS-0, DS-1: 99.9; DS-3, OC-3, OC-3c: 99.99; OC-12, OC-12c,OC-48: 99.999; and OC-48c, STS-1, STS-3, STS-12:99.999; and Types 2, 3 and 4: DS-0, DS-1, DS-3:99.0; OC-12, OC-12c, OC-48: 99.9; and OC-48c, STS-1, STS-3, STS-12: 99.99.
9.05 Intellectual Property. If Service, by itself as provided by Global Capacity, becomes, or if Global Capacity reasonably believes it may become, the subject of a suit, proceeding or other claim by an entity (not bound by these Terms and Conditions or an Affiliate of Global Capacity or Customer) that the Service directly infringes United States patent, trademark or copyrights of such entity, Global Capacity, at its own expense and option will: (a) procure the right to continue to provide Service; (b) modify or replace Service with a different one having substantially similar functionality; or (c) discontinue the Service and, as appropriate, refund to Customer a pro-rata portion of charges paid by Customer through the date of Service discontinuance.
Article X. Third Party Carrier Charges
10.01 Third Party Charges. Customer at all times will remain responsible for third party carrier charges incurred and invoiced to Global Capacity as a result of Customer traffic or surcharges for services which will be passed through to Customer without mark-up. In the event that Customer disputes such charges, Global Capacity will coordinate a dispute of such charges, but Customer will remain responsible in the event that such dispute is denied.
10.02 Third Party Audit. If Global Capacity is subject to a third-party audit relating to Customer’s traffic or services, or its End Users, Customer will cooperate with Global Capacity in connection with the audit, including allowing Global Capacity to furnish Customer information to the third party, subject to reasonable non-disclosure agreements and demands.
Article XI. Dispute Resolution
11.01 Limited Litigation Rights. Either Global Capacity or Customer may elect to litigate the following type of case or controversy: (a) an action seeking equitable relief; (b) a suit to compel compliance with this dispute resolution process; or (c) non-compliance with a party’s publicity obligations. Global Capacity may elect to litigate billing or payment disputes or collections. Any such litigation shall be: (i) held in the state or federal courts situated in Cook County, Illinois, to which jurisdiction and venue all parties consent; and (ii) by way of bench trial, with all parties waiving their right to trial by jury. The prevailing party will be entitled to recover its reasonable attorneys’ fees and costs in connection with such litigation.
11.02 Binding Arbitration. Binding arbitration shall be the sole and exclusive remedy for resolution of disputes between Global Capacity and Customer, except as set forth in Section 11.01. Any dispute to be resolved by arbitration shall be submitted for arbitration in Cook County, Illinois, before a single arbitrator agreed upon by the parties, or, if they are unable to agree, a single arbitrator appointed by the American Arbitration Association (“AAA”). Such arbitration shall be governed by the commercial rules of the AAA. The arbitrator's decision will be final and entered into any court of competent jurisdiction. The prevailing party will be entitled to recover its reasonable attorneys’ fees and costs in connection with such arbitration.
11.03 Mediation. Global Capacity and Customer may elect, but shall not be required, to engage in non-binding mediation as a first alternative to arbitration or litigation. A party that requests mediation shall send written notice of its request for mediation to the other party who must then mutually agree to mediate. Global Capacity and Customer will each then appoint a business executive who did not have day-to-day responsibility over the controversy or dispute to, within thirty (30) days, meet as reasonably necessary to resolve the matter in dispute. Each designated executive shall have been granted authority by the respective party to fully and finally settle the matter in controversy or dispute. Global Capacity and Customer shall each bear its own costs in mediation and, if a third party mediator is hired to assist in the resolution of the matter, then Global Capacity and Customer will each equally share the costs of such mediator.
Assignment Customer may not sell, transfer, or assign these Terms and Conditions or any Services purchased from Global Capacity hereunder, without Global Capacity’s prior written consent. Any such assignment shall be null and void.
Article XIII. Notices
All notices required of Customer under these Terms and Conditions, including any notices of termination of Service, must be in writing and delivered by overnight courier (Federal Express or DHL, as examples) or prepaid certified mail, return receipt requested, to the persons whose names and business addresses appear below. All notices will be effective on the date of receipt by the receiving party. If to Global Capacity: GC Pivotal, LLC d/b/a Global Capacity 180 North LaSalle Street, Suite 2430 Chicago, Illinois 60601 Attn: General Counsel Email: Legal@GlobalCapacity.com (copy) With an Additional Copy To: GC Pivotal, LLC d/b/a Global Capacity 180 North LaSalle Street, Suite 2430 Chicago, Illinois 60601 Attn: Senior Vice President, Finance Global Capacity may elect to change its address or designated contact for purposes of Notices at any time. Global Capacity will post any modification to its address or designated contact on its Website with or without notice. Global Capacity may elect to via bill insert.
Article XIV. Force Majeure
Except for each Party’s indemnification obligations under these Terms and Conditions, neither Global Capacity nor Customer shall be liable to the other, nor deemed in Default under these Terms and Conditions if and to the extent that such Party’s performance is delayed or prevented by reason of Force Majeure, except that Customer’s obligation to pay for Services provided shall not be excused. For purposes hereunder, the term “Force Majeure” means an event that is beyond the reasonable control of the party affected and occurs without such Party’s fault or negligence. Without limiting the foregoing, Force Majeure includes acts of God, fire, explosion, vandalism, terrorism, flood, storm, or other similar catastrophe; acts or omissions of other carriers; failure of the Internet not related to Global Capacity’s actions or inactions, or cable cut not caused by Global Capacity’s employees or contractors; any law, order, regulation, direction, action or request of any governmental entity having jurisdiction over either of the parties, or court, civil or military authority or any other instrumentality of one or more of said governmental agencies; national emergencies, insurrections, riots, wars, acts of terrorism, strikes, lockouts or work stoppages.
Article XV. Miscellaneous
15.1 Order of Precedence and Interpretation. (a) These Terms and Conditions shall be interpreted as a joint writing by Global Capacity and Customer and may not be construed against either party because that party may have drafted, or caused its representatives to draft, any provision contained herein. (b) Each Service shall be provisioned pursuant to these Terms and Conditions and any applicable specific Service Schedule. The order of precedence shall be as follows: applicable Tariffs; these Terms and Conditions; the applicable Service Schedule; the applicable SOF. (c) In the event that Global Capacity and Customer enter into an Addendum that expressly and unequivocally provides that it supersedes and modifies any prior portion of these Terms and Conditions, its terms, conditions, charges, rates, or provisions, then such Addendum, once fully executed and incorporated herein, will control in the event of an inconsistency with these Terms and Conditions.
15.2 Global Capacity Facilities, Equipment and Software. (a) Global Capacity facilities, including equipment and software, used to provide Service will remain the exclusive property of Global Capacity or its assigns, and nothing contained in these Terms and Conditions can be interpreted to convey to Customer any right, title or interest in Global Capacity’s facilities, equipment or software, which will remain personal property even if attached to or embedded in realty. Customer may not remove or conceal any identifying plates, tags, or labels affixed to Global Capacity facilities or equipment, nor may Customer alter, or attempt to alter, software furnished as part of Service. Global Capacity may substitute or rearrange the facilities or equipment, or modify the software, so long as the quality of Service is not materially impaired by the changes. (b) Upon termination of Service for any reason, Global Capacity will retrieve its facilities and equipment from Customer Premises or Customer, at its expense, will return to Global Capacity, within ten (10) days of Service termination, all Global Capacity-provided facilities and equipment, along with any software and other information or materials provided by Global Capacity in connection with the furnishing of Service. The facilities, equipment, software or other materials retrieved or returned will be in the same condition as when initially delivered to Customer, normal wear and tear excepted. If Customer fails to return Global Capacity's property or allow for its retrieval, Customer shall reimburse Global Capacity, upon demand, for the replacement cost of the facilities, equipment, software, and other information or materials provided, as well as any costs, fees and damages incurred by Global Capacity resulting from the Customer's failure to return Global Capacity's property.
15.3 Severability. If any provision of these Terms and Conditions is held to be invalid or unenforceable, the remainder of these Terms and Conditions will remain in full force and effect, and such provision will be deemed to be amended to the minimum extent necessary to render it enforceable.
15.4 Waiver. The terms, representations and warranties of these Terms and Conditions may only be waived by a written instrument executed by the party waiving compliance. Except as otherwise provided herein, neither Global Capacity’s nor Customer’s failure, at any time, to enforce any right or remedy available to it under these Terms and Conditions shall be construed as a continuing waiver of such right or a waiver of any other provision hereunder.
15.5 Governing Law. These Terms and Conditions will be governed by, enforced and construed in accordance with the laws of the State of Illinois without regard to its conflicts of laws principles, except to the extent that the Communications Act of 1934, as amended and interpreted by the FCC, applies to these Terms and Conditions. Global Capacity reserves the right to suspend, modify or terminate any Service, without limitation, where: (1) there is a material governmental change in law that materially impacts adversely Global Capacity’s delivery of Service either directly or through a third party provider; (2) regulatory change that prohibits or restricts Global Capacity from providing Service; or (3) any material rate, charge or term of such Service is substantially changed by a legitimate regulatory body, governmental authority, or by order of the highest court of competent jurisdiction to which the matter is appealed.
15.6 Headings. The headings used in these Terms and Conditions are for convenience only and do not in any way limit or otherwise affect any meaning of any terms of these Terms and Conditions.
15.7 Relationship of the Parties. These Terms and Conditions shall not render Customer the agent or legal representative of Global Capacity, nor shall it create a partnership or joint venture between Global Capacity and Customer. Neither Global Capacity nor Customer shall have any right or authority to bind the other in any manner whatsoever. These Terms and Conditions confer no rights or authority of any kind to third parties.
15.8 Signatures. Any requirement for a signature in any document relating to these Terms and Conditions may be satisfied by a facsimile transmission of an original signature, or by delivery of electronic mail in Adobe Portable Document Format (“PDF”) or similar scanned format, or by an electronic symbol or process (i.e., “e-signature”) attached to or logically associated with these Terms and Conditions, including any component hereof, and executed or adopted by the person having the intent to sign the document. Any person completing, submitting, or executing any such document on behalf of Customer by way of the Internet or other electronic or online means represents that he/she possesses the authority to act on Customer’s behalf, and any such documents so delivered to, and accepted by, Global Capacity shall be binding on Customer.
15.9 Survival. Customer agrees that certain obligations under these Terms and Conditions, which by their nature would continue beyond Termination, cancellation, or expiration of these Terms and Conditions, shall survive cancellation or expiration of these Terms and Conditions. Such obligations include, by way of illustration only and not limitation, those contained in the Customer Obligations, Payments, Confidential Information, Warranty, Limitation of Liability, and Indemnification clauses.
15.10 Entire Agreement. These Terms and Conditions, together with all Service Schedules and applicable SOFs, constitutes the entire agreement between Global Capacity and Customer with respect to the subject matter hereof, and supersedes all prior offers, contracts, agreements, representations and understandings made to or with Customer by Global Capacity, whether oral or written, relating to the subject matter hereof, with the exception that these Terms and Conditions shall not supersede any existing agreement, including a Master Services Agreement, executed by and between Global Capacity and Customer for the provision of Services by Global Capacity to Customer.
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