Finger Lakes Technologies Group, Inc.
Service Terms and Conditions
1. SCOPE; DEFINITIONS.
a. General. These terms and conditions for services (these “Terms”) govern the provision of services (“Services”) by Finger Lakes Technologies Group, Inc. (“FLTG”) pursuant to the accompanying Service Contract (the “Service Contract”) between FLTG and Customer (as identified in the applicable Service Contract), and are incorporated by reference into the Service Contract. FLTG and Customer are sometimes referred to in these Terms individually as a “Party” and collectively as the “Parties.” The Service Contract contains, among other things, a description of the Services purchased by Customer from FLTG, pricing for the Services and the duration of the Services. In addition, the Parties may execute one or more Service Level Agreements (each, an “SLA”) which may contain terms and conditions specific to a particular Service, and may include, as applicable, a separate SLA for (a) Dedicated Internet Access, (b) Collocation, (c) Voice Services and (d) Private Line Services. The Parties acknowledge that FLTG will not provide any SLA with respect to any Off-Net Service; provided, however, that with respect to any Off-Net Fiber Service, Customer may have rights under a service level agreement or similar agreement offered by a Third Party Provider with respect to such Off-Net Fiber Service.
b. Agreement. The Service Contract (including all schedules referenced or incorporated in the Service Contract), these Terms and all SLAs entered into by the Parties in connection with the Service Contract (collectively, the “Agreement”), together with FLTG’s Acceptable Use Policy (“AUP”) and FLTG’s applicable tariffs (the “Tariffs”), comprise the entire agreement between the Parties with respect to the Services, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Service Contract or any SLA, the Service Contract or such SLA, as the case may be, shall govern.
c. Definitions. Various terms are defined throughout the Agreement. In addition, the following terms shall have the following meanings:
i. “FLTG Network” means FLTG’s network, system and equipment used to deliver the Services.
ii. “Off-Net Fiber Service” means any Service where one or both locations to be connected are not served by the FLTG Network and, as a result, a portion of such Service is provided by a Third Party Provider.
iii. “Off-Net Non-Fiber Service” means any Service which requires the use by Customer of a transport circuit that is not on a Fiber facility.
iv. “Off-Net Service” means, collectively, Off-Net Fiber Service and Off-Net Non-Fiber Service.
v. “On-Net Service” means any Service where both locations to be connected are served by the FLTG Network and, as a result, Service is provided entirely by FLTG.
vi. “Third Party Provider” means a service provider, other than FLTG, that provides any Off-Net Fiber Service that is included in the Services.
2. SERVICE TERM.
a. Initial Service Term. The Service Contract sets forth the initial term during which FLTG shall provide Services to Customer (the “Initial Service Term”), subject to the terms and conditions of the Agreement (including, without limitation, Section 12 of these Terms).
b. Extended Service Term. Unless otherwise specified in the Service Contract, if Customer continues to receive Services after the expiration of the Initial Service Term, such Services shall be provided on a month-to-month basis, in accordance with the Agreement, until Customer or FLTG terminates the Agreement pursuant to Section 12 of these Terms (such period being the “Extended Service Term”). As used in this Agreement, the “Service Term” shall mean the Initial Service Term and the Extended Service Term, as applicable.
c. Applicability of Agreement. The terms of the Agreement (including these Terms) shall apply throughout the Service Term.
3. Charges and Payment.
a. Charges. The amounts, including non-recurring charges (“NRCs”) and monthly recurring charges (“MRCs” and, together with the NRCs, the “Charges”) payable by Customer for each Service are set forth on the Service Contract. Notwithstanding anything in the Agreement (including the Service Contract) to the contrary, the MRCs for any Off-Net Services during any Extended Service Term shall be subject to increase by an amount equal to 10% of the MRCs charged for such Off-Net Service during the Initial Service Term.
b. Invoicing. FLTG shall invoice Customer on a monthly basis for the MRCs for each Service, including taxes and other government fees and surcharges (which taxes, fees and surcharges are described on the FLTG website at www.fltg.com, and are subject to change from time to time). The first MRC invoice shall be sent following installation of Service and shall include the pro-rata amount for the partial initial month and the full amount for the next month. Subsequent MRC invoices shall be sent in advance of the month to which the invoice applies. FLTG shall invoice Customer for all NRCs for any Service following the installation of such Service.
c. Payment. Customer shall pay each invoice within 30 days after Customer’s receipt of such invoice (the “Due Date”). If Customer fails to pay any amount on or before its Due Date, then Customer shall pay interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the Due Date until the date paid.
d. Suspension of Services. If Customer does not make any payment within 30 days after its Due Date, then, in addition to all other remedies available to FLTG, FLTG may suspend any or all Services until payment is received.
e. Disputes. If Customer disputes, in good faith, any Charges on an invoice, Customer shall submit to FLTG written notice (a “Dispute Notice”) of the claim for the disputed amount, including a reasonably detailed description of the dispute, prior to the Due Date for the invoice being disputed within  days after Customer’s receipt of such invoice; provided, however, that Customer may not withhold payment of any disputed amount on any invoice unless a Dispute Notice is delivered prior to the Due Date for such invoice. FLTG will respond in writing to all Dispute Notices within 30 days after receipt. The Parties will negotiate in good faith to attempt to resolve such disputes within 45 days of FLTG’s receipt of the Dispute Notice. Notwithstanding anything to the contrary, each Party shall continue performing its obligations under the Agreement during any such dispute, including, without limitation, payment by Customer of all undisputed amounts due and payable under Section 3(c) of these Terms. Following resolution of such dispute, any amounts due from Customer, or credits due to Customer, shall be reflected on the next invoice issued by FLTG following such resolution. Customer waives the right to dispute any Charges, or to receive any refund or credit associated with any Charges, on any invoice not disputed by the delivery of a Dispute Notice prior to the Due Date for such invoice within  days of Customer’s receipt of such invoice.
4. Installation and acceptance.
a. Installation. Upon completion of all of FLTG’s work required for installation of any Service, FLTG shall provide written notice of completion (a “Completion Notice”). In the event that FLTG cannot complete FLTG’s work within the time frames, if any, set forth in the Service Contract or otherwise agreed by the Parties in writing due to a delay caused by Customer, a Force Majeure Event (as defined in Section 14 of these Terms) or any third party, then FLTG shall provide Completion Notices for the portions of Services unaffected by such delay.
b. Acceptance. Customer shall be deemed to have accepted the Service upon installation of such Service, which shall be defined as the earlier of (i) delivery of the Completion Notice by FLTG to Customer, or (ii) the date when Customer first uses the Service for purposes other than testing. Notwithstanding the foregoing, Customer shall have five business days from receipt of the Completion Notice (the “Testing Period”) to test the Service. In the event that Customer discovers non-conformities in the Services during the Testing Period, Customer may deliver to FLTG, during the Testing Period, a written failure notice (a “Failure Notice”) describing the non-conformities. If Customer delivers a Failure Notice during the Testing Period, FLTG shall correct the failure and send a new Completion Notice to Customer, and Customer shall have an additional Testing Period (of five business days) within which to re-test the Service (and, if appropriate, deliver another Failure Notice). This procedure shall be repeated until the Service tests acceptably; provided, however, that if Customer fails to timely deliver a Failure Notice during any applicable Testing Period, Customer shall be deemed to have accepted such Service. FLTG shall also have the right at any time to test the Service and provide the results to Customer.
5. Access, Maintenance and Repair.
a. Maintenance. FLTG shall have the sole obligation and right to maintain and repair the FLTG Network, including without limitation, all fibers and optical equipment required for Service delivery.
b. No Interference. Customer shall not, by itself or through any agent, take any action which damages or interferes or could reasonably be expected to result in damage to or interference with the FLTG Network or the Services. If the FLTG Network requires restoration, replacement or repair as a result of the negligence or willful misconduct of Customer or Customer’s employees, agents, contractors or customers, FLTG shall have the right to take whatever action it deems necessary or appropriate to repair and restore the FLTG Network or the Services or to prevent damage to the FLTG Network, all at the sole cost and expense of Customer.
c. Right to Access. If Customer does not own the premises to which a Service is to be delivered (a “Service Location”), Customer shall secure the written approval of the person or entity that owns the Service Location, to FLTG’s free and open access to complete its obligations hereunder. FLTG shall have access to all Service Locations to inspect the FLTG Network during normal business hours upon 24 hours’ notice to Customer, or immediately in the event of any emergency situation. Customer shall allow FLTG access (or cause any property owner to allow FLTG access) to the Service Location for maintenance or repair of the FLTG Network as required. FLTG will use commercially reasonable efforts to schedule maintenance (“Scheduled Maintenance”) during the maintenance window of 12 a.m. to 6 a.m. or other time as agreed to by Customer. No service credit will be given to Customer for Scheduled Maintenance.
d. Response to Service Interruptions. FLTG shall respond to Customer within two hours of proper notification by Customer of any Service interruption and, if necessary, dispatch a technician to the location of the Service interruption. The technician shall assess the situation and use commercially reasonable efforts to remediate the problem within a commercially reasonable time frame. Customer may be eligible for credits for interruptions in On-Net Service in accordance with the applicable SLA.
6. CUSTOMER’S USE OF SERVICES. Customer’s use of the Services (including all content transmitted via the Services) shall comply with all applicable Laws, the Agreement, FLTG’s AUP and the Tarriffs. Customer is responsible for all access to and use of the Services (whether or not such use is fraudulent or authorized) and for the payment of all Charges resulting from such use.
7. Title. FLTG retains all right, title and interest to the FLTG Network. Nothing contained in the Agreement shall constitute, create, or vest in Customer any ownership or property rights in the FLTG Network. FLTG shall have access to the all Service Locations for a period of 60 days after termination of the Agreement in order to remove any portion of the FLTG Network located at such Service Locations.
8. Use and Taxes. Any Charges and other fees referred to in the Agreement do not include taxes. Customer shall pay any and all existing or future sales, use, excise or other transfer or transactional taxes imposed or levied by any federal, state or local taxing authority on the Charges and/or other payments made by Customer to FLTG hereunder (“Taxes”). Applicable Taxes shall be invoiced by FLTG to Customer unless Customer provides FLTG with a valid and applicable tax exemption certificate before such invoice is generated.
9. Governmental Approvals, Permits, and Consents.
a. Customer’s Compliance. Customer shall use the Services, or cause the Services to be used, in compliance with all applicable federal, state and local laws, statutes, rules, regulations, codes and ordinances (collectively, “Laws”) and all applicable franchises, rights of way, leases, licenses, contracts and other material obligations to third parties with respect to or relating to the FLTG Network or the Services.
b. FLTG’s Compliance. During the Service Term, FLTG shall obtain, or cause to be obtained, all approvals and consents that may be required from all federal, state, and local authorities regarding the ownership, installation or maintenance of the Services. FLTG shall comply with all applicable Laws relating to its delivery of Services to Customer hereunder.
c. Regulatory Actions. The Parties acknowledge that the Agreement and the Services provided hereunder are subject to all applicable Laws and may be subject to review by certain federal, state, and local governmental agencies. If any Law or any regulatory action by such governmental agency alters a Party’s rights or obligations under this Agreement materially and adversely, then such Party may terminate the affected Services (and, if the affected Services constitute all of the Services, terminate the Agreement) without liability for any termination charges on 30 days’ prior written notice to the other Party. If any provision of the Agreement contravenes or is in conflict with any applicable Law, then the terms of such Law shall take priority over the relevant provision of the Agreement. If the applicable Law applies to some but not all of the Services, then such Law shall take priority over the relevant provision of the Agreement only for purposes of those Services to which the Law applies.
10. Representations and Warranties. Each of the Parties represents and warrants that it has full authority to enter into and perform the Agreement, that the Agreement does not conflict with any other document or agreement to which it is a party or is bound, and that the Agreement is fully enforceable in accordance with its terms, and that such Party is an entity validly existing and in good standing under the laws of the states in which it is authorized to do business.
a. General Warranty. FLTG warrants that the quality of Services (not including any Off-Net Services) provided hereunder shall be consistent with common carrier industry standards, applicable Laws and sound business practices.
b. Off-Net Services. FLTG shall oversee and manage the provisioning of Off-Net Services included in the Services, but FLTG makes no warranties as to any Off-Net Services. FLTG shall not be liable for any service failures or deficiencies on the part of any Third Party Provider or other party with respect to the Off-Net Services. With respect to any Off-Net Fiber Services, Customer shall be entitled to all rights and remedies, if any, available to Customer under any service level agreement or similar agreement offered by the applicable Third Party Provider to Customer.
c. NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, FLTG MAKES NO WARRANTIES, REPRESENTATIONS, COVENANTS OR GUARANTEES IN CONNECTION WITH THE AGREEMENT WITH RESPECT TO THE FLTG NETWORK OR THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FLTG DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, PREVENT UNAUTHORIZED ACCESS BY THIRD PERSONS, BE UNINTERRUPTED, SECURE, ERROR FREE, WITHOUT DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATE OR INFORMATION. FLTG DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY ON FLTG’S BEHALF AND CUSTOMER MAY NOT RELY ON ANY STATEMENT OF WARRANTY AS A WARRANTY OF FLTG. THIS SECTION SURVIVES TERMINATION OF THE AGREEMENT.
a. Termination by Either Party. Either Party may terminate the Agreement at any time during the Service Term immediately upon written notice to the other Party, and without liability for any termination charges, if any one of the following events should occur:
i. If the other Party becomes insolvent or admits in writing its inability to pay debts as they mature, or makes an assignment for the benefit of creditors; or
ii. If the other Party files a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended; or
iii. If a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed against the other Party by any third party and such application is not resolved favorably to such other Party within 60 days; or
iv. If the other Party defaults in the performance of any of its obligations under the Agreement, and fails to cure such default within 30 days after receipt of written notice of such default.
b. Termination by Customer during Initial Service Term. Customer may terminate the Agreement at any time during the Initial Service Term, upon 30 days’ written notice to FLTG; provided, however that, except as provided below, as a condition to such termination Customer shall pay to FLTG a termination fee (“Termination Fee”) in an amount equal to the total amount of all unpaid Charges that would be payable through the end of the Initial Service Term (as if the Agreement was not terminated). Notwithstanding the foregoing, if Customer terminates the Agreement prior to the installation of Services, the Termination Fee shall be equal to the costs and expenses incurred by FLTG in connection with establishing and removing the Services (rather than the amount otherwise calculated hereunder).
c. Termination by Customer Upon Relocation of Business. If Customer relocates its business outside of FLTG’s Service Network Area, Customer may terminate this Agreement upon 60 days prior written notice to FLTG; provided, however that if such termination occurs during the Initial Service Term then, as a condition to such termination, Customer shall pay to FLTG a Termination Fee in an amount equal to the lesser of (i) the total amount of all unpaid Charges that would be payable through the end of the Initial Service Term (as if the Agreement was not terminated), and (ii) an amount based upon the duration of the Initial Service Term, determined as follows: (i) $250 if the Initial Service Term was one year or less, (ii) $500 if the Initial Service Term was longer than one year but not longer than two years, and (iii) $1,000 if the Initial Service Term was longer than two years. Customer shall not be required to pay a Termination Fee if it terminates the Agreement pursuant to this Section at any time after the Initial Service Term.
d. Termination by Either Party During Extended Service Term. During the Extended Service Term, (i) FLTG may terminate this Agreement at any time, upon 120 days’ written notice to Customer, and (ii) Customer may terminate this Agreement at any time, upon 30 days’ written notice to FLTG; in each case without any liability for a Termination Fee hereunder.
e. Termination as a Result of Regulatory Action. Either Party may terminate this Agreement subject to and in accordance with the provisions of Section 9(c) of these Terms.
13. Limitation of Liability. ANYTHING CONTAINED HEREIN TO THE CONTRARY NOTWITHSTANDING, IN NO EVENT SHALL EITHER PARTY (OR ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS) BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY AFFILIATED, CONNECTED WITH OR DOING BUSINESS WITH EITHER PARTY WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STRICT LIABILITY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST BUSINESS DAMAGES IN THE NATURE OF LOST REVENUES, PROFITS, CUSTOMERS AND/OR GOODWILL ARISING IN ANY MANNER FROM THE AGREEMENT AND/OR THE PERFORMANCE OR NONPERFORMANCE HEREUNDER, REGARDLESS OF THE FORESEEABILITY THEREOF. THIS DOES NOT LIMIT CUSTOMER’S RESPONSIBILITY FOR THE PAYMENT OF ANY AND ALL PROPERLY DUE CHARGES. FLTG’S AGGREGATE LIABILITY FOR ANY AND ALL SUCH CLAIMS SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL CHARGES PAID BY CUSTOMER HEREUNDER. THIS SECTION SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY AND TERMINATION OF THE AGREEMENT.
FLTG’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES WITH RESPECT TO ANY SERVICE PROVIDED TO CUSTOMER (INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE INSTALLATION, DELAY, PROVISION, TERMINATION, MAINTENANCE, REPAIR, INTERRUPTION, OR RESTORATION OF ANY SUCH SERVICE) OR BREACH OF THE AGREEMENT, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNITY OR STRICT LIABILITY, SHALL BE AS FOLLOWS: (I) FOR A SERVICE QUALITY CLAIM (INCLUDING INTERRUPTION IN SERVICE) WITH RESPECT TO ANY ON-NET SERVICE, THE OUTAGE CREDIT UNDER ANY APPLICABLE SLA; (II) FOR TANGIBLE PROPERTY DAMAGE OR PERSONAL INJURY CAUSED BY FLTG’S NEGLIGENT ACTS OR OMISSIONS, OR FOR ANY DAMAGES ARISING FROM THE WILLFUL MISCONDUCT OF FLTG, THE AMOUNT OF PROVEN DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE CHARGE APPLICABLE UNDER THE AGREEMENT FOR THE PERIOD DURING WHICH SERVICES WERE AFFECTED. FLTG SHALL HAVE NO LIABILITY WITH RESPECT TO A SERVICE QUALITY CLAIM (INCLUDING INTERRUPTION IN SERVICE) WITH RESPECT TO ANY OFF-NET SERVICE.
14. Force Majeure. FLTG shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of FLTG (collectively, “Force Majeure Events”) 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, lock-outs, 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.
15. Confidential Information. From time to time during the Service Term either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, products, services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 15 by the Receiving Party or any of its agents, employees or representatives (collectively, “Representatives”); (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable Law or a valid order issued by a court or governmental agency of competent jurisdiction. The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Receiving Party shall be responsible for any breach of this Section 15 caused by any of its Representatives. At any time during or after the Service Term, at the Disclosing Party’s written request, the Receiving Party shall promptly return, and shall require its Representatives to return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. In addition to all other remedies available at law, the Disclosing Party may seek equitable relief (including injunctive relief) against the Receiving Party and its Representatives to prevent the breach or threatened breach of this Section 15 and to secure its enforcement.
16. Indemnification. Subject to the limitations set forth in Section 13 of these Terms, each Party (as applicable, the “Indemnifying Party”) agrees to indemnify, hold harmless, and defend the other Party, its subsidiaries and affiliates, and their respective officers, directors, employees, attorneys, successors and assigns, from and against any loss, damages, claims, suits, or causes of action for damages, including reasonable attorney’s fees, which may arise out of: (a) any injury to or death of any person and damage to property related to activities arising out of the Agreement to the extent such injury, death or damage is caused by the negligent acts or omissions or willful misconduct of the Indemnifying Party or its principals, employees, agents, or invitees, or by its equipment; (b) the Indemnifying Party’s violation of any applicable Law; or (c) the Indemnifying Party’s breach of the Agreement.
17. Assignment. Customer may not assign the Agreement, or in any other manner transfer its rights, privileges or obligations under the Agreement (including, without limitation, any assignment by merger or operation of law), without the prior consent of FLTG. FLTG may assign this Agreement at any time, without the consent of or notice to Customer.
18. Notices. All notices, invoices and other communications from either Party to the other hereunder shall be in writing and shall be deemed received (a) upon actual receipt when personally delivered, (b) upon acknowledgment of receipt if sent by facsimile, (c) upon the expiration of the third business day after being deposited in the United States mails, postage prepaid, certified or registered mail, or (d) upon the expiration of one business day after being deposited during the regular business hours for next-day delivery and prepaid for overnight delivery with a national overnight courier company, addressed to the other Party as follows:
|FLTG:||Finger Lakes Technologies Group, Inc.
7890 Lehigh Crossing
Victor, New York 14564
Attn: Chief Financial Officer
Facsimile: (585) 924-2619
19. Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the State of New York, without reference to any choice of law rules.
20. Binding Effect. The Agreement shall be binding upon and inure to the benefit of the Parties hereto, their permitted successors and permitted assigns.
21. Amendment; Counterparts. Any amendment or modification to the Agreement shall be in writing signed by authorized representatives of both Parties; [provided, however, that during the Extended Service Term, FLTG may amend these Terms at any time, and from time to time, without the approval of Customer, upon 30 days written notice to Customer]. The Agreement and any amendment of the terms thereof, may be signed in counterparts, each of which shall constitute one and the same instrument. Any hand written notation on these Terms or on any portion of the Agreement by Customer is rejected in its entirety unless expressly agreed to in writing by an FLTG authorized representative.
22. Waiver. No failure or delay on the part of either Party in exercising any right, power or privilege hereunder and no course of dealing between the Parties shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
23. Use of Service. Customer shall not use any Service in any manner other than that for which the Service was intended and shall refrain from using any Service in any manner that would adversely affect the FLTG Network or the Service. Customer shall use each Service in compliance with all applicable Laws. With respect to long-distance voice Services (if applicable), Customer shall not use more than 5,000 minutes per month per line. Upon Customer’s violation of this limit, Customer agrees to FLTG’s right, in its sole discretion and upon reasonable notice to Customer, to terminate long distance voice Services provided by FLTG to Customer.
24. Unauthorized Use of Services. Except as provided in the Agreement, Customer, and not FLTG, shall bear the risk of loss from fraudulent or unauthorized usage of Services provided to Customer. FLTG reserves the right, but is not required, to take any action and all action it deems appropriate to prevent or terminate fraud or abuse in connection with Customer’s usage of Services.