2014-132 ES - Windstream for radio circuit

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20. Emergency.Critical Lines.CUSTOMER ACKNOWLEDGES THAT CERTAIN SERVICES MAY NOT IN CERTAIN CIRCUMSTANCES,PROVIDE ACCESS TO 911 OR TRANSMIT THE MOST ACCURATE LOCATION OR EXTENSION INFORMATION IN A TIMELY MANNER IF CUSTOMER ATTEMPTS TO ACCESS 911 IN AN EMERGENCY.Examples include voice over Internet protocol("VoIP"),Centrex,Allworx ReachTM Application("Allworx ReachTm"),and private branch exchange.Additionally,because T1 s and VoIP can cease operating during a power outage,Customer should have a basic business or copper line for elevator,alarm,E911 and other critical functions.When using Vo1P service or Allworx ReachTm,Customer must timely update changes to their registered location for 911 services.By signing this Agreement,Customer acknowledges that Customer has read this disclosure.By proceeding with use of Services,Customer assumes all responsibility and risk of harm,loss,or damage in the event that 911 access fails,is not possible,or does not provide the address,correct address,extension or other information to emergency authorities. 21. Miscellaneous.(a)Notices and Electronic Communications:Any notice pursuant to this Agreement must be in writing and will be deemed properly given if hand delivered or mailed to Customer at the address populated on Customer's service order or to Windstream at Windstream,Attn: Correspondence Division,1720 Galleria Blvd.,Charlotte,NC 28270,wndstream.business.support@windstream.com or at such other address provided to the other party.CUSTOMER AGREES THAT WINDSTREAM MAY SEND ELECTRONIC MESSAGES TO CUSTOMER CONCERNING WINDSTREAM'S SERVICES;(b)Applicable Law:Venue:This Agreement is subject to applicable federal law and the laws of the state in which the Services are provided,without regard to that state's conflict of laws principles.If this Agreement covers multiple states,then it is subject to Nebraska law,without regard to its conflict of law principles.The parties agree to submit to the exclusive jurisdiction of federal courts in the state in which the Services are provided(or federal courts in Nebraska,if the Agreement covers multiple states)so long as diversity and the amount in controversy requirements are met,or a federal question is at issue;(c)Waiver of Jury Trial.EACH PARTY HERETO HEREBY WAIVES,TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,UNDER OR IN CONNECTION WITH THIS AGREEMENT;(d)Statute of Limitations:No claim may be asserted by either party against the other with respect to any event,act or omission for which a claim accrued more than two(2)years prior to such claim being asserted;the foregoing statute of limitations is not applicable to billing disputes,which are governed by the timeframe for disputes described in Section 4;(e)Assignment:Either party may assign this Agreement to an affiliate or acquirer of all or substantially all of its assets without any advance consent from the other party,but Customer shall provide Windstream with notice and complete all paperwork necessary to effectuate any change in ownership or other account changes.Otherwise,Customer may not assign its rights and obligations under this Agreement without Windstream's advance written consent.Any attempted assignment in violation of this provision is void;(f)Third Party Beneficiaries:No third party shall be deemed a beneficiary of this Agreement;(g) Publicity:Customer agrees that Windstream may publicly disclose that Windstream is providing Services to Customer and may include Customer's name in promotional materials,including press releases;(h)Waive r:Either party s failure to enforce any right or remedy available under this Agreement is not a waiver;(i)Severability:If any part of this Agreement is held invalid or unenforceable,the remainder of this Agreement shall remain in full force and effect;Q) Survival:Sections 16 through 21 survive after this Agreement ends;(k)Handwritten Changes:Handwritten changes are not binding on either party;(1)Use of Products in U.S.Customer acknowledges that the transfer and use of products,services and technical information outside the United States are subject to U.S.export laws and regulations.Customer shall not use,distribute,transfer,or transmit the products,services or technical information(even if incorporated into other products)except in compliance with U.S.export laws and regulations.At Windstream's request,Customer shall sign written assurances and other export-related documents as may be required for Windstream to comply with.U.S.export regulations;(m)Representation on Authority of Parties/Signatories: Each person signing this Agreement represents and warrants that he or she is duly authorized in accordance with its corporate governance documents and has legal capacity to execute and deliver this Agreement.Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party's obligations hereunder have been duly authorized in accordance with its corporate governance documents and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms;(n)Confidentiality:Except when this Agreement is required to be filed with a governmental authority or as may otherwise be required by local,state or federal freedom of information laws,the parties agree that this Agreement contains proprietary and confidential information and shall not be disclosed publicly to any third party except the such dealer(s)or agent(s)of Windstream that are negotiating with Customer in order to execute this Agreement. 22. Service Specific Provisions: For Dynamic IP Services only: Customer represents and warranties that it will immediately notify and post alternative dialing instructions to its end-users if any restrictions or limitations to access emergency 911 services a result from its actions including but not limited to:(a)Extending the origination of outbound calling capabilities of the Dynamic IP service outside of the Windstream Dynamic IP-serviceable area by means of private circuits,wireless service,public networks,the public Internet or other means;(b)Implementing call routing schemes within its applications,systems or networks which may prevent access to emergency services;or(c)Implementing call routing schemes within it applications,systems or networks which may route outbound emergency 911 calls to Public Service Answering Points(PSAPs)other than the PSAP servicing the calling party end-user location.Customer agrees to indemnify and hold Windstream harmless from all claims,causes of action,damages and judgments arising from restrictions or limitations to access emergency 911 services as a result of customer's actions or inactions in ensuring that all 911 dialed calls are routed to the proper PSAP using Windstream's dynamic IP service. For Managed CPE Firewall Services only: Authorization to Perform Testing.Certain laws and regulations prohibit the unauthorized penetration of computer networks and systems.Customer hereby grants Windstream the authority to access Customer's networks and computer systems solely for the purpose of providing the Managed CPE Firewall Service.Customer acknowledges that the Managed CPE Firewall Service constitutes permitted access to Customer networks and computer systems.In the event one or more of the IP Addresses Customer gives to Windstream are associated with computer systems that are owned,managed,and/or hosted by a third party service provider("Host"),Customer agrees to:(i)notify Windstream of such Host arrangement prior to the commencement of any Managed CPE Firewall Service;(ii)obtain Host's written consent for Windstream to provide the Managed CPE Firewall Service on Host's computer systems,which includes acknowledgement of the risks and acceptance of the conditions set forth herein;(iii)provide Windstream with a copy of such consent,acknowledgement and acceptance;and(iv)facilitate any necessary communications and exchanges of information between Windstream and Host in connection with the Managed CPE Firewall Service.Customer agrees to indemnify,defend and hold Windstream and its suppliers harmless from and against any and all claims,losses, liabilities and damages,including reasonable attorney's fees that arise out of Customer's failure to comply with this section.Customer will indemnify and hold Windstream and its suppliers harmless from any and all third party claims that arise out of the testing and evaluation of the security risks,exposures, and vulnerabilities of the IP Addresses that Customer provides.Customer acknowledges that the Managed CPE Firewall Service entail certain risks including the following possible negative impacts:(i)excessive log file disk space may be consumed due to the excessive number of log messages generated by the Managed CPE Firewall Service;(ii)performance and throughput of networks and associated routers and firewalls may be temporarily degraded;(iii)degradation of bandwidth;and(iv)Customer computer systems may hang or crash resulting in temporary system unavailability and/or loss of data. With regard to any software components of the Firewall Device,Customer agrees it will not:(i)use or make any copies of the software;(ii)reverse engineer, decompile,or disassemble the software;(iii)sell,resell,transfer,license,sublicense,or distribute the software;or(iv)create,write,or develop any derivative software or other software program that is based on such software.Customer agrees to indemnify,defend and hold Windstream and its suppliers harmless from and against any and all claims,losses,liabilities and damages,including reasonable attorney's fees,which arise out of Customer's failure to comply with the foregoing.