Portal Terms and Conditions

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AS THEY CONTAIN VERY IMPORTANT INFORMATION ABOUT THE TERMS APPLICABLE TO THE SERVICES AND DEVICES PEERLESS WILL PROVIDE YOU. BY CHECK MARKING THE BOX INDICATING YOUR AGREEMENT AND SELECTING “REGISTER” DURING THE REGISTRATION PROCESS, YOU AGREE TO BE BOUND BY THESE TERMS INCLUDING THE ARBITRATION PROVISION, AND THESE TERMS BECOME A BINDING LEGAL AGREEMENT BETWEEN YOU AND PEERLESS.

In these Portal Terms and Conditions (“Terms”), “we,” “us,” “our” or “Peerless” will refer to Peerless Network, Inc., and the terms “you,” “your” and “Customer” will refer to you. Peerless and Customer are collectively referred to herein as “Parties” and individually as a “Party.” If you are registering for a Peerless account to use the Services or Devices on behalf of an organization, you are agreeing to these Terms for that organization and promising to Peerless that you have the authority to bind that organization to these Terms (and, in which case, the terms “you,” “your” and “Customer” will refer to that organization). If that organization has a separate written agreement with Peerless covering the use of the Services or Devices, that agreement will govern such use.

Peerless may revise these Terms from time to time. If we do, those revised Terms will supersede prior versions. Revisions will be effective upon the effective date indicated at the bottom of these Terms unless otherwise indicated. To the extent that we can, we will provide you at least thirty (30) days advance written notice of any revisions. This notice will be provided in your Peerless account portal or via an e-mail to the e-mail address owner of your Peerless account. We encourage you to check the effective date of these Terms whenever you visit Peerless’s website or log in to your Peerless account. Your continued access or use of the Peerless Services or Devices constitutes your acceptance of any revisions. If you do not agree to the revisions, you should stop using the Peerless Services and Devices.

SERVICES AND DEVICES PROVIDED.

Peerless agrees to provide, and Customer agrees to accept and pay for, those services and/or devices Customer selects directly in the Peerless account portal (the “Portal”) or with Peerless’s assistance and which Peerless provides. In the Portal, the Customer can select from the following services (collectively, the “Services”) and Devices:

Enterprise Services: Enterprise service is comprised of Inbound and Outbound services between the Customer’s network and other telecommunications carriers. Inbound services include Direct Inward Dialing (“DID”), Channels, local number portability processes, Calling Name Delivery (CNAM”), and Toll-Free services. Outbound services include local and long-distance services, as well as E9-1-1. In the Portal, Customer can select SIP Trunks (Session Initiation Protocol Trunking) and Phone Numbers (DID and Toll-Free).

Cloud PBX Services: Peerless owns and operates a Voice over Internet Protocol (“VoIP”) based communications service through devices leased or purchased from Peerless (“Devices”) or Customer-provided devices. Cloud PBX Services may be subject to different regulatory treatment than other services provided by Peerless, which may limit or otherwise affect your rights of redress before telecommunications regulatory agencies or judicial forums. Peerless will act in good faith to minimize disruptions to your use of and access to Cloud PBX Services. Events beyond our control may affect our Cloud PBX Services, however, such as power outages, fluctuations in the internet, your underlying internet service provider or broadband service, or maintenance. You further acknowledge that the Cloud PBX Services may not support 0+ or operator-assisted calling, including collect calls, third-party billing calls, 900 calls, calling card calls, dial-around calls, 311, 511, or other x11 services.

Lease of VoIP Phones: Customer may lease you VoIP phones in conjunction with your order of Cloud PBX Services. The phone lease(s) are subject to the Phone Lease Terms and Conditions available at https://www.peerlessnetwork.io/terms#phone-lease-terms

Purchase of VoIP Phones: Customer may purchase VoIP phones in conjunction with ordering Cloud PBX Services. The phone purchase(s) are subject to the Phone Sale Terms and Conditions available at https://www.peerlessnetwork.io/terms#phone-sale-terms

The Services and Devices will be provided in accordance with these Terms, the additional terms referenced above, as applicable, which are incorporated expressly herein, and state and federal tariffs, if applicable. Applicable state and federal tariffs consist of the service descriptions and other provisions contained in tariffs filed by Peerless or its affiliates, with the applicable commission having jurisdiction over the Services being provided, where applicable. In the event of a conflict between these Terms and the tariffs, where applicable, the order of priority shall be first the Terms, then the applicable tariffs.

TERM AND TERMINATION.

The Terms are effective when you accept these Terms and select any of the Services or Devices provided in the Portal (the “Effective Date”) and shall continue for successive one (1) month periods or as otherwise specified in the Portal when Services and Devices are ordered, unless cancelled by either Party giving at least thirty (30) days’ written notice prior to the expiration of the then current term. Notwithstanding the foregoing, the Terms shall not expire for so long as Peerless continues to provide Services or Devices under these Terms. No new Services may be initiated, or Devices ordered, following notice of cancellation by either Party.

Termination/disconnection requests by Customer must be submitted in writing to billing@peerlessnetwork.com. Customer acknowledges that in the event of expiration or termination of the Terms, Peerless has no obligation to continue to provide Services to Customer or, where applicable, to route traffic originating or terminating to Customer. Customer further agrees that it will immediately affect an orderly and timely transition of Services to another provider or route. Customer may terminate Services or the lease of Devices with prior written notice if Peerless cancels, changes, or supersedes any provision of the Service or lease of Devices due to a change in applicable law if the change materially impacts Customer’s use of the Services or Devices or creates additional material obligations for the Customer.

Peerless may immediately suspend or terminate the Services or Customer’s lease of Devices if Customer fails to (a) make any payment due under the Terms, (b) provide satisfactory assurance of its ability to pay for Services or lease of Devices after reasonable notice, (c) cure any fraudulent or otherwise unlawful activity after reasonable notice, (d) commits a material breach of the Terms which is not remedied after reasonable notice or cannot be remedied; or (e) becomes the subject of a voluntary petition or an involuntary petition in bankruptcy or any proceeding for insolvency, receivership, liquidation, or assignment for the benefit of creditors that is not dismissed within sixty (60) days.

Termination of Services or lease of Devices for any cause does not release Customer from any liability which, at the time of termination, has already accrued to Customer, or which may accrue in respect of any act or omission prior to termination or from any obligation which is expressly stated to survive the termination.

CHARGES, BILLING AND PAYMENT.

1.1 Commencing on the Effective Date, Customer will pay the applicable charges for the Services and lease of Devices. For Service, monthly recurring charges (“MRCs”) will be invoiced on a monthly basis in advance and non-recurring charges will be invoiced in arrears. Usage-based charges will be invoiced in arrears. If the Effective Date for the Services falls on a day other than the first day of any Billing Cycle, the initial charge to Customer shall consist of (a) the pro-rata portion of the applicable monthly charge covering the period from the Effective Date to the first day of the subsequent Billing Cycle, and (b) the MRC for the following Billing Cycle. Peerless shall have the right to increase the rates and charges (as specified in each client’s Portal at https://www.peerlessnetwork.io/pricing (you must be logged in to access this link)) for the Services (including charges for any associated local access circuits) upon seven (7) days written notice to Customer.

In the Portal, Customer must select a payment method: (i) prepay with credit card, where Customer agrees that fees will be deducted from its credit balance, with the ability to top-up and auto top-up; (ii) post-paid with credit card, where Customer wishes to pay for the Services or lease of Devices via credit card at the end of the billing cycle. With this option, Customer agrees their card will be charged on the 1st of each month for the prior month’s usage; and (iii) post-paid with credit terms, where Customer selects that it will pay via check or Automated Clearing House (“ACH”) net thirty (30). If Customer selects post-paid with credit terms and there is not credit card on file, Customer authorizes Peerless to assess Customer’s credit worthiness by whatever means Peerless deems reasonable, including but not limited to accessing the Customer’s business credit information and reaching out to bank and trade references provided by Customer in the Portal registration process. Depending on the method of payment selected, payment will be due on the applicable due date (“Due Date”). Any amount not properly disputed and not paid by the Due Date will bear a late payment charge at the rate of one and a half percent (1.5%) per month (or such lower amount as may be required by law) until fully paid.

Any billing dispute or request for a billing adjustment must be made in good faith and in writing within thirty (30) days from the Due Date otherwise charges will be conclusively deemed undisputed and accepted by Customer. The Parties agree that resolving disputes as promptly and efficiently as possible will best serve their respective interests. All disputes must be directed to billing@peerlessnetwork.com and shall include detailed documentation sufficient for Peerless to assess each element of the dispute (the “Dispute Notification”). Each Party will appoint a knowledgeable, responsible representative with decision-making authority to negotiate in good faith to resolve any dispute arising out of or relating to the dispute. Each Party, through its representatives, shall negotiate diligently and in good faith for a period of sixty (60) days from the Dispute Notification or a mutually-agreed upon time period, to resolve the dispute. If the internal resolution process does not result in a resolution of the dispute, the Parties will proceed to arbitration as set forth below. If the dispute is resolved, the Customer must pay the disputed amount or Peerless will provide a credit on the next invoice, provided Customer is not delinquent in payment or otherwise in default of the Terms, in which case the credit will be issued against a subsequent Customer invoice.

BINDING ARBITRATION.

Any dispute arising out of the Terms, provision of Services, or lease of Devices that cannot be resolved pursuant to good-faith negotiations must be submitted to binding arbitration in accordance with the rules established by the American Arbitration Association (“AAA”). The decision of a sole arbitrator shall be binding on all parties. The arbitration shall be held in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA Rules”), as amended by the Terms.

Either Party may initiate arbitration by providing written demand for arbitration, a copy of these Terms and the administrative fee required by the AAA Rules to the AAA located in Chicago, Illinois. A copy of the notice shall also be provided to the other Party. The remaining cost of the arbitration, including the fees and expenses of the arbitrator, shall be shared equally by the Parties, unless the arbitrator’s award provides otherwise. Each Party shall bear the cost of preparing and presenting its case. The Parties agree that binding arbitration shall be conducted in Chicago, Illinois.

The Parties agree that the Arbitrator’s authority to grant relief shall be subject to the provisions of the Terms, the Federal Arbitration Act, the ABA-AAA Code of Ethics for Arbitrators in Commercial Disputes, applicable tariffs, substantive law of the State of Illinois or the applicable state public service commission, and the Communications Act of 1934, as amended. Except for the intentional misconduct of a Party, the Arbitrator shall not be able to award, nor shall any Party be entitled to receive, punitive, incidental, consequential, exemplary, reliance or special damages, including damages for lost profits. The Arbitrators’ decision shall follow the plain meaning of the relevant documents, and shall be final, binding, and enforceable in a court of competent jurisdiction. The decision of the Arbitrator can only be appealed for mistake(s) of law.

CREDIT AND ASSURANCE OF PAYMENT.

In the event charges due pursuant to any invoice are not paid in full by the Due Date, Peerless shall have the right to suspend all or any portion of the Services or lease of Devices to Customer immediately until such time as Customer has paid in full all charges then due including any late fees or penalties. Following late payment or if at any time Peerless, in its sole discretion, believes that Customer presents an undue risk of nonpayment, Peerless may require that Customer provide satisfactory assurance of its ability to pay for Services or lease of Devices, i.e., requiring a deposit, guaranteed letter of credit, or other means as requested, and advanced payment of the cost of reinstituting Services prior to reinstating such Services or reinstate a Device lease prior to such reinstatement. Failure of Customer to provide the requested assurance within five (5) business days shall be a material breach of Customer’s obligations under the Terms.

AGENT AUTHORIZATION.

If you come to Peerless through an authorized agent that invites you to the Portal, your authorized agent may manage your Portal account and add, change, or remove Services or Devices from your account. You agree to be bound by any changes made by agent to your Portal account, including any charges associated with the addition of Services or Devices. To the extent your agent makes any unauthorized changes to your Portal account, you agree to hold Peerless harmless for any such changes and pursue any claims or causes against agent for alleged damages or losses due to that unauthorized activity.

TAXES, ASSESSMENTS AND CHARGES.

Customer acknowledges that Peerless computes all charges exclusive of any applicable federal, state, or local use, excise, gross receipts, sales, and privilege taxes, duties, fees, or similar liabilities. Except to the extent Customer provides a valid exemption certificate in a form acceptable to Peerless prior to the delivery of Service, Customer will be responsible to pay any other regulatory surcharges that Peerless is required, or permitted, to invoice to Customer in connection with any Service, including, without limitation, permanent or temporary governmental fees or assessments unless Customer provides the appropriate certification to Peerless that the Customer will make payments directly to the applicable agency assessing the fees. It is the Customer’s sole responsibility to supply tax-exempt documentation, if applicable, failing which Customer will be billed accordingly. For taxing purposes, Customer’s Place of Primary Use (“PPU”) is Customer’s billing address. Customer will contact billing@peerlessnetwork.com for changes to its PPU. All payments made by Customer will be made without any deduction or withholding for or on account of any taxes. Customer agrees to indemnify, defend and hold harmless Peerless from any liability or expense associated with applicable taxes or surcharges. To the extent Customer purchases Devices from Peerless, Customer is responsible for all taxes related to the purchase, including sales taxes, value-added taxes, and any other similar taxes imposed by any governmental entity.

NETWORK MODIFICATION AND NETWORK MAINTENANCE.

Peerless reserves the right to modify its network, system configurations or routing configurations. Peerless may, in its sole discretion and without liability, change or modify the features and functionalities of the Services or modify or replace any hardware or software in the network or in equipment used to deliver the Services provided that this does not have a material adverse effect on the Services. Peerless may perform scheduled or emergency maintenance (including temporary suspension of Service as necessary) to maintain or modify the network, network terminating equipment, where applicable, or the Services. Peerless will give Customer such notice of the maintenance as is reasonably practicable in the circumstances, provided that, in the event of scheduled maintenance, Peerless will give Customer at least four (4) days’ notice.

USE OF SERVICES OR DEVICES OUTSIDE THE US.

Peerless encourages use of the Services within the United States to other countries, but Peerless does not presently offer or support use of the Services or Devices in countries other than the United States. Peerless’s Services and Devices are intended for use only by persons or entities whose primary business address is in the United States. If you remove the Devices to a country outside the United States or use the Services from there, you do so at your own risk, including the risk that such activity violates local laws in that country. You will be solely responsible for any violations of law resulting from such use.

CONNECTIVITY

Peerless’s Cloud PBX Services are designed to work generally with unencumbered high-speed internet connections. If your internet service provider places restrictions on the usage of VoIP services, Peerless does not represent or warrant that use of the Cloud PBX Services by you is permitted by any or all of the internet service providers.

There may be other services with which our Cloud PBX Services may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications using the Cloud PBX Services. Peerless does not warrant that the Cloud PBX Services will be compatible with all broadband services and expressly disclaims any express or implied warranties regarding the compatibility of the Services with any particular broadband service.

The Cloud PBX Services may also not be compatible with non-voice communications equipment, including but not limited to, some home and office security systems that are set up to make automatic phone calls, emergency phones in elevators, some aspects of satellite TV systems, digital entertainment systems, fax machines, modems and medical monitoring devices. You acknowledge and agree to such limitations and waive any claim you may have against Peerless for interference with or disruption of such systems due to the Services.

DATA AND COMPUTER MANAGEMENT

You agree and acknowledge that you are responsible for obtaining, installing, configuring, and maintaining suitable equipment to use the Cloud PBX Services, including your computer, telephone, software, system or software upgrades, patches, and other fixes which may be necessary to access the Services. Peerless will only provide assistance with respect to Peerless-provided Devices. For Cloud PBX Services, Peerless may measure and monitor network performance and may access and record information about your computer’s profile and settings to provide customized technical support. You agree that Peerless can monitor your internet connection and your network performance, as well as access and adjust your computer settings, as related to the Cloud PBX Services. For Cloud PBX Services, Peerless is not obligated to store your communication logs, voicemails, faxes, or other messages and, if it does so, it is solely storing them as a convenience to you.

WARRANTY AND LIMITATION OF LIABILITY.

WARRANTY AND DISCLAIMER. PEERLESS WARRANTS THAT IT WILL PERFORM SERVICES WITH REASONABLE SKILL AND CARE AND IN A WORKMANLIKE MANNER AND WILL USE REASONABLE EFFORTS TO RESTORE SERVICES IN THE CASE OF FAILURE. PEERLESS MAKES NO OTHER WARRANTY OR GUARANTEE RELATING TO THE SERVICES OR DEVICES, EXPRESS OR IMPLIED, UNDER THE TERMS OR OTHERWISE, AND PEERLESS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS RELATING TO THE SERVICES AND DEVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE.

LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR COVER DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, INCLUDING ANY DAMAGES ARISING FROM ANY NEGLIGENT ACT OR INADVERTENT OMISSION, WHETHER IN CONTRACT, TORT OR UNDER LAW, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR DIRECT DAMAGES IN AN AMOUNT IN EXCESS OF THE AMOUNT THAT PEERLESS CHARGED OR WOULD HAVE CHARGED FOR SUCH SERVICES OR DEVICES IN THE SIX MONTHS PRIOR TO WHEN THE CLAIMS FIRST AROSE OR $100,000, WHICHEVER IS LESS.

EXCLUSION OF LIABILITY. SUBJECT TO THE PROVISIONS ON WARRANTY AND DISCLAIMER AND LIMITATION OF LIABILITY, ABOVE, IN NO CIRCUMSTANCES SHALL PEERLESS, ITS SUBCONTRACTORS OR AGENTS BE LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OF ANY KIND WHETHER ACTIVE OR PASSIVE: (A) THIRD PARTY CLAIMS AGAINST CUSTOMER FOR DAMAGES, (B) ANY DELAY, LOSS, DAMAGE OR SERVICE FAILURE ATTRIBUTABLE TO ANY SERVICE, DEVICE, PRODUCT OR ACTIONS OF ANY PERSON, INCLUDING BUT NOT LIMITED TO DELAY, LOSS, DAMAGE, OR SERVICE OR DEVICE FAILURE ATTRIBUTABLE TO COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, ‘DENIAL OF SERVICE’ ATTACKS, DNS SPOOFING ATTACKS AND/OR OTHER HACKING ATTACKS OF A SIMILAR NATURE, OR (C) INTEROPERABILITY OF SPECIFIC CUSTOMER APPLICATIONS.

LIMITATIONS PERIOD. EXCEPT FOR CLAIMS FOR INDEMNIFICATION, NO ACTION OR PROCEEDING AGAINST EITHER PARTY ARISING UNDER THESE TERMS, THE SERVICES, OR LEASE OR SALE OF DEVICES PROVIDED WILL BE COMMENCED BY THE OTHER PARTY MORE THAN ONE (1) YEAR AFTER THE TERMINATION OF THE TERMS OR PEERLESS PROVIDING THE SERVICES OR DEVICES, WHICHEVER IS LATER, AND EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION CONSTITUTES AN EXPRESS WAIVER BY IT OF ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDITIONAL TIME.

INDEMNITY.

For the purposes of this provision, “Losses” means all losses, liabilities, damages and costs, including taxes and other additional charges, and all related costs and expenses (including reasonable attorney’s fees and disbursements and costs of investigation, litigation and settlement).

Customer shall defend, indemnify and hold Peerless, its affiliates, and their respective employees, agents, and contractors harmless from and against all Losses resulting from or in connection with any third party claims, suits, or proceedings: (i) arising from Customer’s mischaracterization of its traffic or erroneous classification, as applicable, as an end user of the Services, where applicable; (ii) alleging that the content, use and/or publication of information and communications transmitted by Customer, or its customers or end-users using the Services or Devices (“Content”) infringes upon or violates the rights of such third party; and (iii) alleging that Customer’s use of the Services, Devices or the Content violates applicable law regardless of the form of action, whether in contract, tort, warranty, or strict liability and whether in respect of copyright infringement or any manner of intellectual property claims; including but not limited to, under either (ii) or (iii) above, defamation claims or claims involving publication or transmittal of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing materials.

Each Party shall defend, indemnify and hold the other Party, its affiliates, and their respective employees, agents, and contractors harmless from and against all Losses resulting from or in connection with any third party claims, suits, or proceedings arising out of, relating to, or in connection with a death, personal injury, or damage to real and tangible real property to the extent resulting from or caused by the gross negligence, willful misconduct, or recklessness of the indemnifying Party, its affiliates, and their respective employees, agents, or contractors.

The Parties’ indemnity obligations are conditioned upon: (A) the indemnified Party giving the indemnitor prompt written notice of any such suits, claims, and proceedings; (B) the indemnitor having complete and sole control of the defense and settlement of any such claim, suits, or proceeding provided, however, that the indemnitor provides all relevant information in a timely manner to the indemnified Party and that the indemnified Party must approve of any settlement, such approval not to be unreasonably withheld; and (C) the indemnified Party reasonably cooperating with the indemnitor to facilitate the defense or settlement thereof.

FORCE MAJEURE.

Other than with respect to failure to make payments due hereunder, neither party shall be held responsible for any delay or failure in performance of any part of these Terms to the extent such delay or failure is caused by: fire; flood; earthquake; the elements; lightning; explosion; war; act of terrorism; strike; embargo; labor dispute; utility curtailments; power failures; government requirement; civil or military authority; act of god or nature; inability to secure materials or transportation facilities; act or omission of carriers or suppliers (other than the parties themselves); acts or failures to act of any governmental authority; computer viruses or worms; ‘denial of service’ attacks, DNS spoofing attacks and/or other hacking attacks of a similar nature (provided that the parties have taken reasonable steps to prevent such hacking attacks) or any other causes beyond its reasonable control, whether or not similar to the foregoing providing that for any cause of force majeure the parties have taken reasonable steps to prevent such an event. Failure of either party to perform under the Terms, because of the occurrence of an event of force majeure lasting more than forty-five (45) days will, upon twenty-four (24) hours written notice to the other party, represent a ground for termination only of the Services affected by such event.

REGULATORY MATTERS; COMPLIANCE WITH LAWS; USE OF SERVICES AND SOFTWARE; ACCEPTABLE USE POLICY; SHORT DURATION CALLS; AUTO-DIALING AND CALL BLASTING.

The Parties shall comply with their licenses and all laws applicable to the Terms and to their respective businesses. The Parties shall perform their obligations under the Terms in a commercially reasonable, ethical, and professional manner and in accordance with applicable law.

Peerless, upon reasonable notice to Customer, may cancel or suspend the provision of the whole or any part of any Service or lease of Devices which is determined to be a violation of, or no longer permitted under, any applicable law or regulation or of Peerless’ license in the jurisdiction, or for Customer use of Services not as designed or provided or disrupt other users of the Services or of the Peerless Network.

Peerless hereby grants to Customer a personal, non-exclusive, non-transferable license during the term of these Terms to use, in object code form, all software and related documentation owned by Peerless (“Licensed Material”) which may be furnished to Customer under the Terms solely for use with the Service ordered. Any Licensed Material furnished to Customer under these Terms shall not be reproduced or copied in whole or in part and will be returned to Peerless at the conclusion of the term (or earlier termination) of these Terms.

Customer will ensure that neither it nor its customers or other authorized third-party end users interfere with or disrupt other users of the Services or of the Peerless Network. Customer will use a Services and Devices only for the purposes for which they are designed and provided. Customer shall abide by Peerless’s then-current Acceptable Use Policy (“AUP”) available at https://www.peerlessnetwork.io/terms#acceptable-use-policy and incorporated by reference.

Customer is solely responsible for (a) content of information and communications transmitted using the Services and Devices, and (b) use and publication of communications and/or information using the Services or Devices. Customer understands and agrees that Peerless is only an intermediary for the transmission of Customer and third-party information, that Peerless plays a passive role as a conduit of information for Customer and third parties, and that Peerless neither initiates the transmission of information, selects the receivers of the transmission, nor selects nor modifies the information contained in the transmission.

Short Duration Traffic. A Short Duration call is a call that is six (6) seconds or less in duration. Customer must inform Peerless if it intends to exchange Short Duration traffic. It is the Customer’s responsibility to monitor its traffic for SD traffic. If Short Duration traffic is sent to Peerless the following call parameters apply: all per minute rates (Interstate Long Distance, Intrastate Long Distance and Local if applicable) assume at least 85% of calls terminating will be of a call duration of no less than six (6) seconds in length. If 15% or more of Customer’s completed calls are equal to or less than six (6) seconds in length during any billing cycle, then Peerless reserves the right, in its sole discretion, to: (i) charge and Customer shall pay, in addition to Customer’s current rates, a $0.01 short duration surcharge per call; and (ii) take curative action that may result in the modification, suspension or cancellation of Customer’s Services or lease of Devices.

Auto-Dialing and Call Blasting. Auto-dialers, continuous call session connectivity, fax broadcasting, fax blasting, mass calling or any other blasting activities are not permitted with Peerless Services or Devices unless written approval is provided by Peerless. If Peerless has reasonable suspicion that Customer may be in violation of the foregoing prohibitions, Peerless in its sole discretion may take curative action that may result in the modification, suspension or cancellation of Customer’s Services or lease of Devices.

Call Recording. With Cloud PBX Services, you may be provided with functionality that allows you to record individual telephone conversations. Laws regarding notice, notification and consent for recording conversations varies by each state, including the requirement to obtain consent in some states. You agree that you are solely responsible for complying with all federal, state, and local laws in any state if you decide to use the recording feature.

CALEA Compliance. Peerless intends to fully comply with the Communications Assistance for Law Enforcement Act (“CALEA”). Notwithstanding any provision in the Terms to the contrary, by using the Services or leasing Devices, Customer agrees and consents to Peerless’s right to monitor and otherwise disclose the nature of communications if and as required by CALEA without any further notice to you.

GOVERNING LAW.

These Terms shall be governed by the laws of the State of Illinois, without giving effect to the principles of conflicts of laws, except that if federal law, including the Communications Act of 1934 (47 U.S.C. 151 et. seq.), as amended by the Telecommunications Act of 1996, and as from time to time interpreted in the duly authorized rules, regulations and orders of the Federal Communications Commission (“FCC”) or a state Commission, applies, federal law shall control.

NOTICES.

All notifications, requests, demands and other communications required or permitted under these Terms (“Notices”) will be in writing and addressed to the recipient Party at the address(es) specified below. Notice will be deemed given: (a) upon delivery, when delivered in person during a Business Day or, if outside the hours of a Business Day, on the next Business Day; (b) twenty-four hours (24) after transmission of an email or deposit with an overnight delivery service for next day delivery; (c) the same day when sent by facsimile transmission during normal business hours, receipt confirmed by sender’s equipment; or (d) three (3) Business Days after deposit in the mail, postage prepaid, registered or certified mail, return receipt requested.

To Peerless: Peerless Network, Inc.
222 S Riverside Plaza Suite 2730; Chicago, IL 60606 ATTN: EVP, Sales and Marketing
Facsimile: 312-506-0931
contracts@peerlessnetwork.com

For billing disputes: billing@peerlessnetwork.com
For termination: billing@peerlessnetwork.com
To Customer: Pursuant to the information submitted in the registration process.

GENERAL.

Independent Contractors. Peerless and Customer are, and shall be deemed to be, independent contractors with respect to the subject matter of these Terms. Nothing contained herein shall constitute this arrangement to be a joint venture or a partnership between Peerless and Customer. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party.

Assignment. Customer may not assign its rights or obligations under these Terms. Peerless may freely assign the Terms or any portion thereof to an entity controlling, controlled by, or under common control with, directly or indirectly, by Peerless (a “Peerless Affiliate”), and may freely assign its right to receive payments hereunder. Any assignment, transfer or other disposition which is in violation of this provision is void and of no force and effect.

Subcontracting. Peerless, without Customer's consent, may subcontract the provision of a Service, a portion of a Service, or lease of Devices provided that Peerless will continue to be liable for the performance of such subcontractors under the Terms.

Customer Data. Notwithstanding anything to the contrary, Customer agrees that Peerless (or any Peerless Affiliate) may process personal data (for example, contact details) provided by Customer in connection with the Terms (hereinafter, “Customer Data”) for the purpose of the Terms, for purposes connected with the Service or lease of Devices, and/or business relationship between the Parties, consistent with applicable law and regulation. Customer confirms that, to the extent required, it has obtained all necessary consents from third parties in order to share any third-party information. Such processing may also include transferring Customer Data to other Peerless Affiliates worldwide and/or its storage in a local or foreign database.

Confidential Information. Each Party agrees to maintain in strict confidence customer data or data a reasonable person would consider confidential. No obligation of confidentiality shall apply to disclosed information which the recipient (i) already possessed without obligation of confidentiality, or (ii) develops independently, or (iii) rightfully receives without obligation of confidentiality from a third party, or (iv) must disclose due to reasons permitted or prescribed by law or due to court, mediation, arbitration, or official orders. The recipient shall immediately notify the other Party of any disclosures made pursuant to this provision. Each Party acknowledges that a breach or threatened breach of confidentiality may cause irreparable harm, which cannot be adequately compensated by monetary damages. Accordingly, in the event of any such breach or threatened breach, the Party that threatened to make or made the unauthorized disclosure consents to equitable relief, including temporary restraining orders or preliminary or permanent injunctions, in addition to any other remedies that the Party to which the confidential information belongs is entitled.

Privacy. For Cloud PBX Services, Peerless must utilize, in whole or in part, the public Internet and third-party networks to transmit voice and other communications. Peerless encrypts all voice communications for its Cloud PBX Services, but Peerless cannot guarantee that VoIP communication will be completely secure. You agree that Peerless shall not be liable for any lack of privacy arising out of use of the Cloud PBX Services. You acknowledge that you have read our Privacy Policy (“Privacy Policy”) understand that it sets forth how we will collect, store, and use your Customer Data. If you do not agree with our Privacy Policy, then you must stop using the Peerless Services immediately.

Publicity. Neither Party will publish or use any advertising, sales promotions, press releases or other publicity which uses the name, logo, trademarks or service marks of the other without the prior written approval of the other, provided either Party may list the other as a supplier/customer of the services provided hereunder.

E9-1-1 Dialing. If you decide to utilize the E9-1-1 service option, you agree to the Notification and Disclosure regarding the Non-Availability of Traditional 911 or E911 Dialing Service available at https://www.peerlessnetwork.io/terms#disclosure-911 when utilizing VoIP Emergency Services 911 Dialing.

No Waiver. No waiver of any term or condition of the Terms shall be enforceable unless it is in writing and signed by the Party against whom it is sought to be charged. No failure or delay by either Party in exercising any right, power or remedy will operate as a waiver of any such right, power or remedy unless provided herein. The waiver by either Peerless or Customer of any breach of the Terms by the other in a particular instance will not operate as a waiver of subsequent breaches of a same or different kind.

Binding Effect. If any provision of these Terms is held to be invalid or unenforceable, the remainder of the Terms 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.

Amendments. No amendment to or modification of or rescission, termination, or discharge of these Terms is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of these Phone Lease Terms and signed by an authorized representative of Peerless.

Survival. Termination of these Terms shall not affect either Party's accrued rights or obligations under these Terms as they exist at the time of termination, or any rights or obligations that either expressly or by implication continue after these Terms have ended.

No Third-Party Beneficiary. These Terms are not intended to be for the benefit of any third party, is not enforceable by any third party, and will not confer on any third party any remedy, claim, right of action or other right.

Headings. The headings and other captions in these Terms are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of these Terms.

Remedies. Except as may otherwise be provided herein, the assertion by a Party of any right or the obtaining of any remedy hereunder shall not preclude such Party from asserting or obtaining any other right or remedy, at law or in equity, hereunder.


Last updated: June 05, 2019

Phone Sale Terms and Conditions

These Phone Sales Terms are applicable to the sales of Voice over Internet Protocol (“VoIP”) phones by Peerless to you in conjunction with Peerless’ Cloud PBX Service. In these Phone Sales Terms and Conditions (“Phone Sale Terms”), “we,” “us,” “our” or “Peerless” will refer to Peerless Network, Inc., and the terms “you,” “your” and “Customer” will refer to you. Peerless and Customer are collectively referred to herein as “Parties” and individually as a “Party.” If you are agreeing to the Phone Lease Terms on behalf of an organization, you are agreeing to these terms for that organization and promising to Peerless that you have the authority to bind that organization to these Phone Lease Terms (and, in which case, the terms “you,” “your” and “Customer” will refer to that organization). These terms expressly incorporate the Portal Terms and Conditions, available at https://www.peerlessnetwork.io/terms Portal Terms”) as if fully restated herein. The Portal Terms, the Phone Sale Terms, and the confirmation of sale that you receive through the Portal when you select the number, type and price of VoIP phones constitute the entire agreement between the Parties with regarding to the subject matter as stated herein.

DEVICES.

Peerless agrees to sell to Customer, and Customer agrees to purchase from Peerless, the number of VoIP phones Customer selects in the Portal, subject to Peerless’s approval (collectively, the "Devices").

DELIVERY.

The goods will be delivered within a reasonable time after the receipt of your order in the Portal, subject to availability of Devices. Peerless shall not be liable for any delays, loss or damage in transit. Peerless shall have the Devices delivered to you at the location specified in the Portal. Peerless, in its sole discretion, without liability or penalty, may make partial shipments of Devices to you. Each shipment will constitute a separate sale, and you will pay for the units shipped whether such shipment is in whole or partial fulfillment of your order.

NON-DELIVERY.

The quantity of any installment of Devices as recorded by Peerless or its designated vendors on dispatch from Peerless or its designated vendor’s place of business is conclusive evidence of the quantity received by you unless you can provide conclusive evidence proving the contrary. Peerless shall not be liable for any non-delivery of Devices unless you give written notice to Peerless of the non-delivery within seven (7) days of the date when the Devices would in the ordinary course of events have been received. Any liability of Peerless for non-delivery of the Devices shall be limited to replacing the Devices within a reasonable time or adjusting the payment due respecting such Devices to reflect the actual quantity delivered.

SHIPPING TERMS.

Delivery shall be made free on board Peerless’s location or the location of its designated vendor.

INSPECTION OF DEVICES.

You shall inspect the Devices within seven (7) days of receipt ("Inspection Period"). You will be deemed to have accepted the Devices unless you notify Peerless in writing of any Nonconforming Devices during the Inspection Period and furnishe such written evidence or other documentation as reasonably required by Peerless. "Nonconforming Devices" means only the following: (i) product shipped is different than identified in your Portal order confirmation; or (ii) product's label or packaging incorrectly identifies its contents. If you timely notify Peerless of any Nonconforming Devices, Peerless shall, in its sole discretion, (i) replace such Nonconforming Devices with conforming Devices, or (ii) credit or refund the Price for such Nonconforming Devices. You shall ship, at your expense and risk of loss, the Nonconforming Devices to Peerless. If Peerless exercises its option to replace Nonconforming Devices, Peerless shall, after receiving your shipment of Nonconforming Devices, ship to you, at your expense and risk of loss, the replaced Devices to the address identified when you placed your order in the Portal to purchase the Devices. You acknowledge and agree that the remedies set forth in this Section are your exclusive remedy for the delivery of Nonconforming Devices. Except as provided in this Section, all sales to you are made on a one-way basis, and you have no right to return Devices purchased from Peerless.

PRICE.

You will purchase the Devices from Peerless at the price ("Price") set forth in the Peerless Portal when you place your Device order. If the Price should be increased by Peerless before delivery of the Devices to a carrier for shipment to you, then these Phone Sale Terms shall be construed as if the increased price was originally inserted herein, and you shall be billed on the basis of such increased price. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by you. You will be responsible for all such charges, costs and taxes; provided, that, you shall not be responsible for any taxes imposed on, or with respect to, Peerless’s income, revenues, gross receipts, personnel or real or personal property or other assets.

PAYMENT TERMS.

You will pay amounts due to Seller in the manner as indicated in the Portal Terms. You will not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Peerless, whether relating to Peerless’s breach, bankruptcy or otherwise.

LIMITED WARRANTY.

Products manufactured by a third party ("Third-Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Devices. PEERLESS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

LIMITATION OF LIABILITY.

IN NO EVENT SHALL PEERLESS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PEERLESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. MOREOVER, IN NO EVENT SHALL PEERLESS'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE PHONE SALE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, THE AMOUNTS PAID TO PEERLESS FOR THE DEVICES SOLD HEREUNDER IN THE SIX (6) MONTHS PRIOR TO WHEN THE CLAIMS FIRST AROSE OR $100,000, WHICHEVER IS LESS.

COMPLIANCE WITH LAWS.

You will comply with all applicable laws, regulations and ordinances. You will maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Phone Sale Terms. You will comply with all export and import laws of all countries involved in the sale of the Devices under these Phone Sale Terms or any resale of the Devices by you.


Last updated: June 05, 2019

Phone Lease Terms and Conditions

These Phone Lease Terms are applicable to the lease of Voice over Internet Protocol (“VoIP”) phones by Peerless to you in conjunction with Peerless’ Cloud PBX Services. In these Phone Lease Terms and Conditions (“Phone Lease Terms”), “we,” “us,” “our” or “Peerless” will refer to Peerless Network, Inc., and the terms “you,” “your” and “Customer” will refer to you. Peerless and Customer are collectively referred to herein as “Parties” and individually as a “Party.” If you are agreeing to the Phone Lease Terms on behalf of an organization, you are agreeing to these Terms for that organization and promising to Peerless that you have the authority to bind that organization to these Phone Lease Terms (and, in which case, the terms “you,” “your” and “Customer” will refer to that organization). These terms expressly incorporate the Portal Terms and Conditions, available at https://www.peerlessnetwork.io/terms (“Portal Terms”) as if fully restated herein.

LEASE.

Peerless agrees to rent/lease to Customer, and Customer agrees to lease from Peerless, the number of VoIP phones Customer selects in the Portal, subject to Peerless’s approval (collectively, the "Devices").

OPERATION.

Customer shall not remove the Devices from Customer's address specified in the Portal for where Devices should be shipped, without prior written approval of Peerless. Customer shall allow Peerless to enter Customer's premises at all reasonable times to locate and inspect the state and condition of the Devices. Customer shall at its expense keep and maintain the Devices in a good state of repair, normal wear and tear excepted, and shall use the Devices only for their intended purpose and follow any instructions provided regarding the use and maintenance of the Devices.

RENT.

In consideration of Customer's right to possess and use the Devices during the Term (as defined in the Portal Terms), Customer shall pay the rent at the monthly rate specified in the Portal where Customer selects which Devices are being leased ("Rent").

If, by the end of the Term, Customer does not return the Devices to Peerless in the condition and on the terms and conditions set forth in these Phone Lease Terms, Customer shall continue to comply with all the terms and conditions of these Phone Lease Terms, including the obligation to pay the prorated daily Rent for each day from the expiration of the Term until the date on which Customer returns such Devices to Peerless in the manner required herein ("Holdover Rent"). Customer shall not construe anything contained in this Section, including Customer's payment of Holdover Rent, as Peerless's (a) waiver of Customer's failure to perform any obligation under these Phone Lease Terms; or (b) assent to any renewal of these Phone Lease Terms.

LIMITED WARRANTY.

Peerless shall replace the Devices with identical or similar Devices if the Devices fail to operate in accordance with the manufacturer's specifications and operation instructions. Such replacement shall be made as soon as practicable after Customer returns the non-conforming Devices. Customer shall return all non-conforming Devices at its expense and risk of loss to Peerless to the destination specified by Peerless. Products manufactured by a third party ("Third-Party Product") may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Devices. Third-Party Products are not covered by the above limited warranty.

The limited warranty above does not apply where the Devices have been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Peerless, or used with any Third-Party Product, hardware, software, or product that has not been previously approved in writing by Peerless.

OTHER THAN AS SET FORTH ABOVE, PEERLESS MAKES NO WARRANTY WHATSOEVER, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AGAINST INTERFERENCE; OR (d) WARRANTY AGAINST INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

THE REMEDIES SET FORTH IN THIS SECTION ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES AND PEERLESS'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.

TITLE AND RISK OF LOSS.

Title to the Devices remains with Peerless throughout the Term, and Customer shall acquire no right, title, or interest in the Devices. Customer shall not pledge or encumber the Devices in any way. Customer shall bear all risk of loss, damage, destruction, theft, and condemnation to or of the Devices from any cause whatsoever ("Loss") until the Devices have been returned to Peerless. Customer shall notify Peerless in writing within ten (10) days of any such Loss.

RETURN OF DEVICES.

Obligation to Return Devices. Customer shall, at its risk and expense, no later than the expiration of the Term (a) deinstall, inspect, and properly pack the Devices; and (b) return the Devices, shipping paid at Customer’s expense, to Peerless. Peerless may charge Customer a restocking fee when such Devices are returned.

Condition of Devices Upon Return. Customer shall cause the Devices returned for any reason under these Phone Lease Terms to (a) be free and clear of all liens (other than liens of Peerless) and rights of third parties; (b) be in the same condition as when delivered to Customer, ordinary wear and tear excepted; (c) have all Customer's insignia or markings removed; and (d) be in compliance with applicable law. Peerless may charge Customer fees if Devices are return in a different condition than when delivered to Customer, ordinary wear and tear excepted.

COMPLIANCE WITH LAW.

Customer shall (a) comply with all applicable laws, regulations, and ordinances and (b) maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Phone Lease Terms.

ENTIRE AGREEMENT.

These Phone Lease Terms, including and together with any terms referenced herein or incorporated documents, related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.

CUMULATIVE REMEDIES.

All rights and remedies provided in these Phone Lease Terms are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Notwithstanding the previous sentence, the Parties intend that Customer's rights under the provision heading “Limited Warranty” are Customer's exclusive remedies for the events specified therein.

REVISIONS.

Peerless may revise these Terms from time to time. If we do, those revised terms will supersede prior versions. Revisions will be effective upon the effective date indicated at the bottom of these Phone Lease Terms as posted online unless otherwise indicated. To the extent that we can, we will provide you at least thirty (30) days advance written notice of any material revisions. This notice will be provided in your Peerless account portal or via an e-mail to the e-mail address owner of your Peerless account. We encourage you to check the effective date of these Phone Lease Terms whenever you visit Peerless’s website or log in to your Peerless account. Your continued possession or use of the Devices constitutes your acceptance of any revisions.

CHOICE OF LAW.

These Phone Lease Terms shall be governed by the laws of the State of Illinois, without giving effect to the principles of conflicts of laws, except that if federal law, including the Communications Act of 1934 (47 U.S.C. 151 et. seq.), as amended by the Telecommunications Act of 1996, and as from time to time interpreted in the duly authorized rules, regulations and orders of the Federal Communications Commission (“FCC”) or a state Commission, applies, federal law shall control.

BINDING ARBITRATION.

Any dispute arising out of these Phone Lease Terms that cannot be resolved pursuant to good-faith negotiations must be submitted to binding arbitration in accordance with the rules established by the American Arbitration Association (“AAA”). The decision of a sole arbitrator shall be binding on all parties. The arbitration shall be held in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA Rules”), as amended by the Terms.

Either Party may initiate arbitration by providing written demand for arbitration, a copy of these Terms and the administrative fee required by the AAA Rules to the AAA located in Chicago, Illinois. A copy of the notice shall also be provided to the other Party. The remaining cost of the arbitration, including the fees and expenses of the arbitrator, shall be shared equally by the Parties, unless the arbitrator’s award provides otherwise. Each Party shall bear the cost of preparing and presenting its case. The Parties agree that binding arbitration shall be conducted in Chicago, Illinois.

The Parties agree that the Arbitrator’s authority to grant relief shall be subject to the provisions of the Terms, the Federal Arbitration Act, the ABA-AAA Code of Ethics for Arbitrators in Commercial Disputes, applicable tariffs, substantive law of the State of Illinois or the applicable state public service commission, and the Communications Act of 1934, as amended. Except for the intentional misconduct of a Party, the Arbitrator shall not be able to award, nor shall any Party be entitled to receive, punitive, incidental, consequential, exemplary, reliance or special damages, including damages for lost profits. The Arbitrators’ decision shall follow the plain meaning of the relevant documents, and shall be final, binding, and enforceable in a court of competent jurisdiction. The decision of the Arbitrator can only be appealed for mistake(s) of law.

LIMITATION OF LIABILITY.

IN NO EVENT SHALL PEERLESS BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF ANY PROVISION OF THESE PHONE LEASE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT PEERLESS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL PEERLESS'S AGGREGATE LIABILITY UNDER THESE PHONE LEASE TERMS EXCEED THE TOTAL OF THE AMOUNTS PAID TO PEERLESS HEREUNDER IN THE SIX (6) MONTHS PRIOR TO WHEN THE CLAIMS FIRST AROSE OR $100,000, WHICHEVER IS LESS.

LIMITATIONS PERIOD.

EXCEPT FOR CLAIMS FOR INDEMNIFICATION, NO ACTION OR PROCEEDING AGAINST EITHER PARTY ARISING UNDER THESE PHONE LEASE TERMS WILL BE COMMENCED BY THE OTHER PARTY MORE THAN ONE (1) YEAR AFTER THE TERMINATION OF THESE PHONE LEASE TERMS, AND EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION CONSTITUTES AN EXPRESS WAIVER BY IT OF ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF LIMITATIONS WHICH WOULD OTHERWISE AFFORD ADDITIONAL TIME.

FORCE MAJEURE.

Peerless shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached these Phone Lease Terms, for any failure or delay in fulfilling or performing any term of these Phone Lease Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Peerless including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage, provided that, if the event in question continues for a continuous period in excess of forty-five (45) days, Customer shall be entitled to give notice in writing to Peerless to terminate these Phone Lease Terms.

HEADINGS.

Headings in these Phone Lease Terms are for convenience of reference only and are not to be used in any interpretation of these Phone Lease Terms between the Parties.


Last updated: June 05, 2019

Peerless’ VoIP Emergency Services 911 Dialing

Peerless provides Voice over Internet Protocol (“VoIP”) services, including SIP trunking and other VoIP based services (“VoIP Services”). The VoIP Services do not support E911 dialing or other emergency functions in the same way that traditional telephone services do. The Federal Communications Commission (“FCC”) has mandated that VoIP service providers must: (a) inform its customers of these differences and how they may affect users’ ability to access 911 and E911 services; and (b) retain a record on file verifying that the Customer (sometimes referred to herein as “you” or “your”) has received and understands this Disclosure.

It is important that you and each user of the VoIP Services understand how these differences affect your ability to access 911 and E911 services. For purposes of this Disclosure, “Peerless” means Peerless Network, Inc. and any affiliate or subsidiary of Peerless. If you have any questions or concerns about the information contained in this Notice, please contact Peerless immediately.

You and each user of the VoIP Services must be aware of, understand and comply with the following:

VOIP SERVICES, INCLUDING 911 AND E911 SERVICES (THE ABILITY TO CONTACT EMERGENCY SERVICES BY DIALING 9-1-1 THROUGH THE VOIP SERVICES), MAY NOT OPERATE IN CERTAIN SITUATIONS.

Power Outages. The VoIP Services, including 911 and E911 services (the ability to contact emergency services by dialing 9-1-1), will not function in the event of a power failure or disruption. Once power service is restored, the Customer may be required to reset or reconfigure the VoIP equipment in order to use the VoIP Services to contact emergency services by dialing 9-1-1.

Broadband Connection Disruption. Disruption in your broadband connection, including outages, interruptions or degradation, or termination or suspension for any reason of your broadband services, including nonpayment, will result in the loss of VoIP Services, including 911 and E911 services (the ability to contact emergency services by dialing 9-1-1). Once the broadband connection services are restored, the Customer may be required to reset or reconfigure the VoIP equipment in order to use the VoIP Services to contact emergency services by dialing 9-1-1.

Suspension of VoIP Services. Any suspension of the VoIP Services will result in the loss of 911 and E911 services (the ability to contact emergency services by dialing 9-1-1). Once the VoIP Services are restored, you may be required to reset or reconfigure the VoIP equipment in order to use the VoIP Services to contact emergency services by dialing 9-1-1.

Network Congestion. Network congestion or other network problems, including those due to technical constraints, could result in your calls being dropped or delayed, including 911 and E911 calls to emergency services. Also, your 911 and E911 calls may take longer to connect than 911 and E911 calls made using traditional non-VoIP telephone service.

VOIP 911 AND E911 SERVICE CALLS MAY NOT BE COMPLETED OR MAY BE ROUTED TO EMERGENCY PERSONNEL WHO WILL NOT BE ABLE TO ASSIST YOU.

Moving Your Device to a Different Physical Address. VoIP 911 and E911 service (the ability to contact emergency services by dialing 9-1-1), will not function if you move your equipment or device to a different street address or location other than your current Registered Location (the most recent information obtained by Peerless that identifies the physical location of the Customer’s VoIP enabled phone or device). If you wish to move your device to an alternate physical address (even if the move is temporary or short term you must enter an order associated to the phone number(s) in Peerless Network’s portal and provide the alternate physical address information. You acknowledge and understand that it may take several days for any change in address to be completed. Your failure to submit this information to Peerless could result in your 9-1-1 calls being routed to emergency personnel who will not be able to assist you and emergency personnel being dispatched to the incorrect location.

Emergency Personnel May Not Be Able to Identify or Recognize Your Phone Number. Not all public safety answering points (“PSAP”) are technically capable of recognizing your telephone number. Also, if you use a non-native telephone number (a telephone number from a local exchange area different from where you are located), the PSAP may not be able to recognize your telephone number. This means that emergency personnel may not be able to call you back if the call cannot be completed, is dropped, disconnected or if you cannot communicate your number to them. If possible, you should be prepared to give the PSAP, emergency personnel, or other operator your phone number, the nature of your emergency and your location.

Valid Address In the 911 Database. Customer is responsible for loading a valid address in the 911 database via Peerless Network’s portal for each phone number they intend to send 911 calls from. Customer is also responsible for sending all 911 calls associated to these numbers to Peerless Network. 911 calls not sent to Peerless Network will not display a caller’s location and may not complete to a PSAP or Emergency Call Relay Center.

ALTERNATIVE MEANS OF CONTACTING 911 AND E911 SERVICES.

Peerless recommends that you maintain an alternate means of contacting 911 and E911 emergency services and you must inform users of the VoIP Services of such alternate means. Customers that acquire VoIP Services from Peerless will receive a set of stickers explaining when 911 and E911 service may not be available. The Customer must place the stickers on or near the equipment you use to access your VoIP Services to alert users to use alternate means of contacting 911 and E911 in the event of an emergency. If you need additional stickers, please contact our Customer Service representative

DISCLAIMERS AND LIMITATIONS

Peerless does not control how 911 and E911 calls are answered or handled by any local emergency response center. Peerless relies entirely upon third parties to route 911 and E911 calls to local and national emergency response centers. Peerless disclaims all responsibility for: (i) the actions and conduct of any and all national and local emergency response centers; (ii) any third party data used to route the call that is incorrect or yields an erroneous result; and (iii) 911 or E911 service failure caused, in whole or part, by Customer’s acts or omissions.

IN NO EVENT SHALL PEERLESS, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS OR ANY THIRD-PARTY PROVIDER OR VENDOR WHO MAY FURNISH SERVICES OR PRODUCTS TO YOU IN CONNECTION WITH THE VOIP SERVICES OR THE EQUIPMENT BE HELD LIABLE TO CUSTOMER, ANY USER OF THE VOIP SERVICES, OR OTHER PARTY FOR ANY CLAIM, DAMAGE, OR LOSS WHATSOEVER ARISING FROM OR RELATING TO 911 OR E911 DIALING AND CUSTOMER HEREBY WAIVES ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION ARISING FROM OR RELATING TO 911 OR E911 DIALING.

ACKNOWLEDGMENT

By accepting the Portal Terms and Conditions and selecting E9-1-1 Dialing, you affirmatively acknowledge that (i) you have read and understood this 911 and E911 Disclosure; (ii) you understand that while using the VoIP Services you may not be able to contact emergency services by dialing 9-1-1; and (iii) you understand that you must inform users of the VoIP Services that they may not be able to contact emergency services by dialing 9-1-1 while using the VoIP Services. You agree to indemnify, defend and hold Peerless harmless against any claims brought by a third-party user of the VoIP services arising from their use or attempted use of 911 or E911 services through the VoIP Services.


Last updated: June 05, 2019

Acceptable Use Policy

Introduction. This acceptable use policy (the "Policy") defines acceptable practices relating to the use of Peerless' services (the "Service") by customers of Peerless (“Customers”) and by users that have gained access to the Service through Customer accounts (“Users”). By using the Peerless’s Service, you acknowledge that you and your Users are responsible for compliance with the Policy. You are responsible for violations of this Policy by any User that accesses the Services through your account, which includes without limitation Users for whom you provide services as a reseller of Peerless’ Services. The Policy applies to all aspects of the Service. “Peerless” means “Peerless Network, Inc., and all of its affiliates (including direct and indirect subsidiaries and parents). "Peerless’s network" includes, without limitation, Peerless's constructed or leased transmission network, including all equipment, systems, facilities, services and products incorporated or used in such transmission network. As used in this Policy, “you” refers to Customers, and any reference to “Users” is intended to encompass, as applicable, both Customers and their Users. This Policy is designed to assist in protecting the Peerless’s network, the Service, our Users, the Internet and the Internet community, and to improve Service and to improve Service offerings.

Services and Network Security. Peerless makes no guarantee regarding, and assumes no liability for, the security and integrity of any data or information transmitted by a User over the Internet. Use of the Services is subject to CALEA. Any attempt to breach system and network security measures is a violation and may result in criminal and civil liability. These violations include, without limitation, the following: (I) Unauthorized Access – Users may not attempt to gain unauthorized access to or attempt to interfere with the normal functioning and security of Peerless’s network or any other system, computers, accounts, or networks or purposely breach firewalls or security measures of another company's or individual's system (hacking); (ii) Unauthorized Monitoring – Users may not attempt to monitor any information on any network or system without authorization from the network administrator; (iii) Interference - Users may not attempt to intercept, redirect or otherwise interfere with communications intended for others; (iv) Fraud/Forgery – Users may not impersonate another party by altering IP addresses or forging TCP-IP packet header information within an e-mail or newsgroup posting.; (v) “Denial of Service Attacks” – Users may not cause or further a denial of service attack or otherwise flood or attempt to overload a system; (vi) Virus Transmission - Users may not intentionally or negligently transmit files containing a computer virus, Trojan Horse, worms, corrupted data or other destructive activities.

Unlawful Use. Customer will use best efforts to prevent unauthorized, illegal, or fraudulent use of the Services, and shall terminate any unauthorized, illegal, or fraudulent user access and immediately notify Peerless of any such unauthorized, illegal, or fraudulent use, attempted use of, or access to, the Services. Regardless of how Customer becomes aware of unlawful activity, Customer is not relieved of liability related to the offending traffic and will also be responsible for paying third-party fees directly related to the offending traffic. Peerless has no obligation to prevent, monitor, notify, or actively seek facts or circumstances indicating any fraud, abuse or illegal activities.

Use of the Services for transmission, distribution, retrieval, or storage of any information, data or other material in violation of any applicable law or regulation (including, where applicable, any tariff or treaty) is prohibited. The Services shall not be used for any unlawful activities or in connection with any criminal or civil violation and the Services shall in all cases be used in compliance with applicable law. This includes, without limitation, the use or transmission of any data or material protected by copyright, trademark, trade secret, patent or other intellectual property right without proper authorization and the transmission of any material that constitutes an illegal threat, violates export control laws, or is obscene, defamatory or otherwise unlawful. (i) Intellectual property – unauthorized Transmission of material protected by patent, copyright, trade secret, or other intellectual property right (including, without limitation, the Digital Millennium Copyright Act); (ii) Inappropriate content – any Transmission of material that is obscene or constitutes child pornography, material that is libelous, defamatory, hateful, or that constitutes an illegal threat or abuse; (iii) Export control – Unauthorized Transmission of any material that may violate export control laws or other regulations (iv) Forging of Headers – misrepresenting or forging message headers to mask the originator of a message; (v) CAN-SPAM ACT – failure to comply with all provisions of the CAN-SPAM Act (15 U.S.C 7701, et. seq., and 16 CFR Part 316).

Users are prohibited from intentionally or negligently injecting false data into the Internet or call stream, for instance in the form of bad routing information (including but not limited to the announcing of networks owned by someone else or reserved by the Internet Assigned Numbers Authority) or incorrect DNS information. Users may not attempt to send e-mail messages or transmit any electronic communications using a name or address of someone other than the User for purposes of deception. Any attempt to impersonate someone else by altering a source IP address information or by using forged headers or other identifying information is prohibited. Any attempt to fraudulently conceal, forge or otherwise falsify a User's identity in connection with use of the Service is prohibited.

Peerless will cooperate with appropriate law enforcement agencies and other parties involved in investigating claims of illegal or inappropriate activity. Peerless reserves the right to disclose Customer information to the extent authorized by federal or state law, including without a subpoena, in specific extenuating circumstances. As a reseller Customer of Peerless’s Services (if applicable), by using and accepting Services, you consent to our disclosure to any law enforcement agency pursuant to a court order or a lawful subpoena of your identity as the service provider of record (including basic contact information), as applicable, for any User about whom Peerless is contacted by the law enforcement agency.

Penalties. If Customers or Users engage in conduct or a pattern of conduct, including without limitation repeated violations by a User whereby correction of individual violations does not in Peerless’s sole discretion correct a pattern of the same or similar violations, while using the Service that violates the Policy, or is otherwise illegal or improper, Peerless may, in its sole discretion, take any or all of the following actions if it discovers or reasonably suspects any abuse or unlawful activity: (i) take commercially reasonable action on offending numbers in order to minimize misuse; (ii) issue a verbal, e-mail or written warning notifying the Customer of the misuse and the corrective action that must be taken; (iii) suspend, with or without warning, all or part of a Customer’s Service and may condition restoration of such Service upon Customer affecting corrective action; and/or (iv) terminate, with or without warning, all or part of Customer’s service and may terminate Customer’s Agreement. Peerless will generally attempt to notify you of any activity in violation of the Policy and request that the User cease such activity; however, in cases where the operation of the Peerless network is threatened or cases involving unsolicited commercial email/SPAM, a pattern of violations, mail relaying, alteration of your source IP address information, denial of service attacks, illegal activities, suspected fraud in connection with the use of Service, harassment or copyright infringement, we reserve the right to suspend or terminate your Service or the User's access to the Service without notification.

Any unauthorized, illegal, or fraudulent use or misuse of the Services by or through Customer voids all warranties, express or implied, by Peerless, and relieves Peerless from any responsibility for performance under the respective Service Order where fraud, abuse or illegality occurred.

Failure of Peerless to enforce this Policy or take any action with respect to a Violation shall not constitute a waiver of its right to enforce any other Violation. Peerless reserves the right to modify this Policy at any time by communicating such modified Policy to Customer or by posting it on Peerless’s website at www.peerlessnetwork.com, effective upon posting.

Installation and Repair Terms and Conditions

These Installation and Repair Terms and Conditions are applicable to the installation and/or repair services selected in the Portal and any hardware purchased in conjunction with having any Services, Devices, or Hardware installed or repaired. In these Installation and Repair Terms and Conditions (“Installation and Repair Terms”), “we,” “us,” “our” or “Peerless” will refer to Peerless Network, Inc., and the terms “you,” “your” and “Customer” will refer to you. Peerless and Customer are collectively referred to herein as “Parties” and individually as a “Party.” If you are agreeing to the Installation and Repair Terms on behalf of an organization, you are agreeing to these terms for that organization and promising to Peerless that you have the authority to bind that organization to these Installation and Repair Terms (and, in which case, the terms “you,” “your” and “Customer” will refer to that organization). These terms expressly incorporate the Portal Terms and Conditions, available at https://www.peerlessnetwork.io/terms (“Portal Terms”) as if fully restated herein. The Portal Terms, the Installation and Repair Terms, the confirmation of sale that you receive through the Portal when you select the installation and repair services, and any invoice provided regarding the repair or installation constitute the entire agreement between the Parties with regarding to the subject matter as stated herein.

SERVICES AND HARDWARE.

Peerless agrees to sell to Customer, and Customer agrees to purchase from Peerless installation and repair services (“I&R Services”) as selected in the Portal, subject to Peerless’s approval, and hardware necessary to provide such I&R Services, such as wiring or jacks (the “I&R Hardware”). I&R Services will be provided between 8:00 AM and 5:00 PM local time zone, Monday through Friday, depending on Customer’s availability or a mutually agreed time. Customer agrees that Peerless may contract with a third party to provide any and all I&R Services and I&R Hardware.

REQUIREMENTS FOR THE PROVISION OF SERVICES.

Customer agrees that it will clear any obstructions to allow Peerless to have clear access to racks. If requested, Customer will provide rack elevations, site map, and floor plans prior to resource scheduled onsite date. Network rack(s), site power, and grounding must meet any hardware manufacturer requirements. All patch panels, cable management, and/or patch cables must be installed and labeled prior to the resource scheduled onsite date, unless otherwise agreed by Peerless. Customer must provide a project manager, if requested, and an engineer during resource scheduled onsite visit to verify/troubleshoot as needed. Customer will provide dumpster access to dispose of debris or Peerless will leave debris in a dedicated area within Customer’s facility. Customer must provide onsite parking at no charge.

PRICE AND SERVICE DESCRIPTION

You must request I&R Services at least 48-hours in advance or expedite fees will be applicable. You will purchase the I&R Services at an hourly rate (the "Price") set forth in the Peerless Portal when you place your order. Hourly rates exclude Federal Holidays. Higher rates will apply during Federal Holidays and are subject to availability. A minimum of two hours shall be billed for any I&R Services. All additional time will be billed in 30-minute increments. If any I&R Hardware will be needed for the I&R Services, you will be invoiced for the I&R Hardware following the repair and installation. If the I&R Services Price should be increased by Peerless before such I&R Services are provided, then these I&R Services shall be construed as if the increased price was originally inserted herein, and you shall be billed on the basis of such increased price. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by you. You will be responsible for all such charges, costs and taxes; provided, that, you shall not be responsible for any taxes imposed on, or with respect to, Peerless’s income, revenues, gross receipts, personnel or real or personal property or other assets.

PAYMENT TERMS.

You will pay amounts due to Peerless in the manner as indicated in the Portal Terms. You will not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Peerless, whether relating to Peerless’s breach, bankruptcy or otherwise.

LIMITED SERVICES WARRANTY.

The I&R Services shall be performed with that degree of skill and judgment normally exercised by recognized professional firms performing services of the same or substantially similar nature. In response to a written notice of a warranty claim by Customer, Peerless, in its sole discretion, shall correct at its own expense any defect, deficiency, or nonconformance therein.

LIMITED HARDWARE WARRANTY.

Products manufactured by a third party ("Third-Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the I&R Hardware. PEERLESS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

DISCLAIMER OF WARRANTIES.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, NO OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNES FOR A PARTICULAR PURPOSE ARE MADE BY PEERLESS.

LIMITATION OF LIABILITY.

IN NO EVENT SHALL PEERLESS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PEERLESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. MOREOVER, IN NO EVENT SHALL PEERLESS'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, THE AMOUNTS PAID TO PEERLESS FOR THE I&R SERVICES AND I&R HARDWARE SOLD HEREUNDER IN THE SIX (6) MONTHS PRIOR TO WHEN THE CLAIMS FIRST AROSE OR $100,000, WHICHEVER IS LESS.

COMPLIANCE WITH LAWS.

You will comply with all applicable laws, regulations and ordinances. You will maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms. You will comply with all export and import laws of all countries involved in the sale of the I&R Hardware under these Terms or any resale of the I&R Hardware by you.

Last updated: August 29, 2019