MASTER SERVICE AGREEMENT 

This Agreement for Services (“Agreement”) is entered into by and between GlobalTmail USA, LLC, dba Voifone Carrier a Utah Limited Liability Company (hereafter “VOIFONE”) and any commercial or non-commercial user who utilizes the services of VOIFONE or logs into any Customer Portal (hereafter “Customer”).

This Agreement consists of these terms and conditions and any order, statement of work, exhibit, or similar document executed under this Agreement (each, an “Attachment”). VOIFONE and Customer are referred to herein collectively as “Parties” and individually as “Party.”

  1. SERVICES. VOIFONE will provide to Customer the services specified in each Attachment (“Services”).
  2. TERM. This Agreement will commence as of the date first set forth next to their signatures and will continue until the expiration or termination of the latest-ending Attachment. Each Attachment will specify its duration.”
  3. PAYMENT. Customer will pay the fees described in the Attachments.
    1. Except as specified in an Attachment,
      1. recurring fees will automatically be paid monthly by electronic means in advance with the first month payment due upon contract inception;
      2. non-recurring fees will be due upon contract inception;
  • all fees and deposits are deemed fully earned and non-refundable when due or in the case of deposits, when paid.
  1. Customer will bear all taxes, duties, and other government charges relating to the Services (including interest and penalties to the extent caused by Customer’s actions or omissions), except taxes based on VOIFONE’s income. Customer will support any VOIFONE claim of tax exemption with appropriate documentation.
  2. Interest will accrue on past-due balances as of the date of delinquency at the lower of:
    1. one and one-half percent (1.5%) per month, or
    2. the highest rate permitted by applicable law. Service may immediately be suspended for non-payment or exceeding customers credit limit without notice. If Services are suspended due to nonpayment of fees or exceeding Customer’s credit limit and subsequently reconnected, a reconnection fee or deposit may apply, in addition to applicable interest.
  3. CONFIDENTIALITY. During the course of this Agreement, either Party may receive or have access to Confidential Information of the other. “Confidential Information” means any confidential information or data disclosed by a Party (“Disclosing Party”) to the other Party (“Recipient”) under or in contemplation of this Agreement, which
    1. if in tangible form or other media that can be converted to readable form is clearly marked as Confidential, proprietary, or private when disclosed; or
    2. if oral or visual, is identified as Confidential, proprietary, or private on disclosure. The terms “Disclosing Party” and “Recipient” include each Party’s corporate affiliates that disclose or receive Confidential Information. Each Party will cause its affiliates to comply with the obligations of this Section 4, and each Party agrees that it is responsible for its affiliates’ compliance with this Section 4. Actions or omissions by a Party’s affiliate, that if taken by said Party would constitute a breach of this Section 4, will be considered actions or omissions of said Party. The Recipient acknowledges the economic value of the Disclosing Party’s Confidential Information. The Recipient therefore, will:
      1. use the Confidential Information only in connection with the Recipient’s performance of its obligations or in exercising its rights under this Agreement;
      2. restrict disclosure of the Confidential Information to employees of the Recipient and its affiliates with a “need to know” and not disclose it to any other person or entity without the prior written consent of the Disclosing Party;
  • advise those employees who have access to the Confidential Information of their obligations with respect thereto;
  1. treat the Confidential Information with at least the same degree of care to avoid disclosure to any third party as is used by Recipient with respect to its own information of like importance which is to be kept secret; and
  2. copy the Confidential Information only as necessary for those employees who are entitled to receive it and ensure that all confidentiality notices are reproduced in full on such copies.
  1. For the purposes of this Section 4 only, “employee” includes third parties retained by the Parties for temporary consultative, administrative, clerical, programming or related Services support. A “need to know” means that the employee reasonably requires the Confidential Information to perform his or her responsibilities in connection with this Agreement.
  2. “Confidential Information” will not include, and the obligations of this Section 4 will not apply to, any information or data which the Recipient can demonstrate:
    1. is available to the public;
    2. becomes available to the public through no breach of this or any other agreements between the Parties;
  • before its disclosure hereunder, was known by the Recipient without any obligation owing to the Disclosing Party (directly or indirectly) to hold it in confidence;
  1. is received from a third party who does not owe any duty to the Disclosing Party (directly or indirectly) with respect to such information;
  2. is independently developed by the Recipient without the use of Confidential Information of the Disclosing Party; or
  3. is approved for release by written authorization of the Disclosing Party but only to the extent of such authorization and without any disassembly, reverse engineering, or similar undertaking by Recipient. If Recipient is required by law or regulation to disclose Confidential Information of the Disclosing Party, Recipient may do so, but only to the extent and for the purposes of such required disclosure, and only if the Recipient first promptly notifies the Disclosing Party of the need for such disclosure and allows the Disclosing Party a reasonable opportunity to seek an appropriate protective order.
  1. Confidential Information, including copies, will be deemed the property of the Disclosing Party. The Recipient will, within twenty (20) days of a written request by the Disclosing Party return all Confidential Information (or any designated portion thereof), including all copies thereof, to the Disclosing Party or if so directed by the Disclosing Party, destroy such Confidential Information. The Recipient will also, within ten (10) days of a written request by the Disclosing Party, certify in writing that it has satisfied its obligations under this Section.
  1. LIMITED WARRANTY.
  1. VOIFONE warrants that Services
    1. will meet the applicable specifications in the Attachment(s); and
    2. will be provided in a professional and workmanlike manner by individuals with suitable skills and abilities. VOIFONE will use commercially reasonable efforts to re-perform any Services not meeting this limited warranty promptly following notice from Customer. Except as provided in an Attachment, Services will be deemed accepted when performed. VOIFONE does not warrant products, equipment, hardware, or software not manufactured or managed by VOIFONE, but will, to the extent permitted, assign to Customer any warranties given to VOIFONE by the applicable vendor(s).
  2. EXCEPT AS EXPRESSLY PROVIDED HEREIN, VOIFONE MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. THE REMEDY STATED ABOVE IS CUSTOMER’S SOLE REMEDY FOR A BREACH OF WARRANTY. VOIFONE EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE SERVICES OR RELATED SYSTEMS WILL OPERATE UNINTERRUPED OR ERROR-FREE.
  • LIMITATION OF LIABILITY.
    1. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING COST OF RECOVERY.
    2. EACH PARTY’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIM RELATING TO SERVICES OR THIS AGREEMENT WILL BE LIMITED TO AN AMOUNT EQUAL TO THE SUM OF THE FEES PAID BY CUSTOMER FOR THE APPLICABLE SERVICES IN THE ONE MONTH IMMEDIATELY PRECEDING THE DATE OF THE RELEVANT CLAIM.
    3. THE FOREGOING LIMITATIONS OF LIABILITY IN SECTION 6.b ABOVE WILL NOT APPLY FOR CLAIMS RELATING TO VIOLATIONS OF VOIFONE’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING SOFTWARE), THE PARTIES’ OBLIGATIONS IN THE SECTIONS “CONFIDENTIALITY” AND “INDEMNIFICATION”, AND MAY BE FURTHER LIMITED BY FEDERAL, STATE OR LOCAL LAW. ALL OF THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY, HOWEVER, WHETHER THE APPLICABLE CLAIM IS BASED ON LOST GOODWILL, LOST PROFITS, LOSS OF USE OR PERFORMANCE OF ANY PRODUCTS, SERVICES, OR OTHER PROPERTY, LOSS OR IMPAIRMENT OF DATA OR SOFTWARE, OR OTHERWISE, AND WHETHER THE APPLICABLE CLAIM ARISES OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, CONTRACT, TORT, (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE REASONABLY FORESEEABLE.
  • INDEMNIFICATION. Customer agrees to indemnify and hold harmless VOIFONE, its respective officers, agents, employees, contractors, subcontractors, suppliers, invitees, and representatives, from and against any and all third party claims, including without limitation claims by Customer’s customers, of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) for physical injury or death or damage to real property to the extent caused by the indemnifying Party’s gross negligence or willful misconduct. If the indemnifying Party acknowledges in writing its obligations under this Section, the indemnifying Party will have the right to conduct the defense of such claim or action and all negotiations for settlement or compromise. However, the indemnified Party, at its own expense, may participate in the defense of any such proceeding through counsel of its choosing.
  • TERMINATION. If either Party defaults in the performance of any material provision of any Attachment or this Agreement, and such default is not cured within
    1. for Customer late payments, ten (10) days;
    2. for all other matters, thirty (30) days, after notice specifying, in reasonable detail, the nature of the default, then the non-defaulting Party may by further notice terminate for cause the Attachment or, if such breach affects the entire Agreement, this Agreement. Where VOIFONE is the defaulting Party, the cure period will extend for up to thirty (30) more days if VOIFONE notifies Customer that VOIFONE has commenced cure activities and continues to use good faith efforts to cure the default. On termination by VOIFONE for Cause or by Customer without cause, Customer will pay as liquidated damages and not as a penalty the sum of all remaining recurring Service fees (as well as any past due balances) due under the remaining term(s) of the affected Attachment(s), and any waived setup fees. Termination of one Attachment will not affect any other Attachment.
  • INTELLECTUAL PROPERTY. VOIFONE will have and retain full and exclusive ownership of all intellectual property rights associated with any design, data, specification, know-how, software, device, technique, algorithm, method, discovery or invention, whether or not reduced to practice, relating to any
    1. Service, including any VOIFONE work product,
    2. Website or other online service,
    3. result of a Service,
    4. joint development, and/or
    5. enhancement or improvement to or derivative of any of the foregoing (collectively, “VOIFONE Property”).
    6. The intellectual property rights associated with VOIFONE Property are referred to collectively as “VOIFONE IP”. Except as provided in an Attachment, Customer receives no right, title or interest in or license to use any VOIFONE IP. However, Customer does receive a non-exclusive, nontransferable, terminable license to use such of the VOIFONE IP that is necessary for Customer to exercise its rights hereunder, but solely in connection with and only for the term of the applicable Service and subject to the terms of any applicable Attachment. Customer will not allow access to VOIFONE Property, including without limitation, software and systems, by anybody other than Customer’s employees and subcontractors who
      1. are bound by law or written agreement to comply with Customer’s duties under this Agreement with respect to VOIFONE Property and Confidential Information, and
      2. require such access to assist Customer in its permitted use thereof. Customer will not directly or indirectly reverse engineer, decompile, disassemble or copy any VOIFONE Property. Customer will return all VOIFONE Property to VOIFONE at the conclusion of the applicable Service. Customer will cooperate to take such actions reasonably requested to vest ownership of VOIFONE IP and VOIFONE Property in VOIFONE.
    7. Force Majeure

      1. Force Majeure. Services may be impeded by events outside of VOIFONE’s reasonable control, including acts of God, floods, fires, hurricanes, earthquakes, acts of war or terrorism, technology attacks, labor actions, failure of third-party suppliers, or changes in applicable laws and regulations. Failure to provide the Services due to a force majeure event will be excused.
      2. All notices required hereunder will be made in writing to the last known address of the Party to whom the notice is delivered. Notices will be acceptable only if provided as follows, and will be deemed given:
        1. one (1) day after deposit with an overnight courier, charges prepaid;
        2. three (3) days after mailing by first class, certified, or registered U.S. Mail, charges prepaid, return receipt requested; and
  • when delivered by hand, email or by facsimile with confirmed receipt.
  1. Independent Contractors. The Parties are independent contractors, and nothing herein will be construed to any other effect. Each Party alone will determine, supervise and manage the method, details, and means of performing its obligations. Except as agreed in writing, neither Party will act or attempt to act or represent itself, directly or by implication, as the other Party’s agent. Each Party will be solely responsible for the withholding and payment ofall applicable federal, state, and local taxes for its own employees.
  2. Except as specified in an Attachment, neither Party is bound by any exclusivity to the other under this Agreement.
  3. No Third Party Beneficiaries. This Agreement benefits Customer and VOIFONE. There are no intended third party beneficiaries, including without limitation Customer’s customers.
  4. Severability; No Waiver. Any provision of this Agreement that is prohibited or unenforceable will be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions. No course of dealing or failure of a Party to enforce strictly any term or provision of this Agreement, or to exercise any right, obligation, or option provided hereunder, will waive such term, provision, right, obligation, or option.
  5. In this Agreement, the term “including” means “including, without limitation”, and the term “days” refers to calendar days. This Agreement and each Attachment is the joint work product of VOIFONE and Customer, and no inference may be drawn or rules of construction applied against either Party to interpret ambiguities. Should the terms of this Agreement and an Attachment conflict, the terms of the Attachment will govern for that Attachment only. No preprinted or form terms on a purchase order will apply.
  6. Assignment. This Agreement will be binding on the successors and assigns of both Parties, provided, however, Customer will not assign, delegate or transfer this Agreement (an “Assignment”) without VOIFONE’s prior written consent. Such consent will not be required, however, for an assignment involving a sale by VOIFONE of all or part of Customer’s account or a substantial portion of the accounts receivable or VOIFONE’S interest in this Agreement (“Customer’s Account”).
  7. Governing Law; Venue. This Agreement shall, in all respects, be governed by and construed and enforced in accordance with the law of the State of Utah, excluding any conflict of law rules that would refer the matter to be decided by the laws of another jurisdiction. The UN Convention on the International Sales of Goods shall not apply.  For valuable consideration, both Parties acknowledge and agree that any action to enforce or interpret the terms of this Agreement or relating to the Services to be provided by the Parties shall be instituted and maintained only in federal or state court in Salt Lake County, Utah.  The Parties hereby consent to the jurisdiction and venue of such court and waive any objection to such jurisdiction and venue.  All proceedings shall be in English. Notwithstanding the foregoing, in the case of a suit to collect past due payments, the Parties agree that VOIFONE may, in its sole discretion, bring suit in the courts of any jurisdiction where Customer does business or has assets, and Customer hereby consents to such jurisdiction.
  8. Either Party will be entitled to immediate injunctive relief in addition to any other rights and remedies available to it at law or in equity, without the posting of a bond or demonstration of irreparable harm, for breach by the other Party of Section 4 or 9 above. Except as stated herein, the rights and remedies of each Party are cumulative, and are in addition to any other rights or remedies available at law or in equity.
  9. Laws, Regulations, Permits. Each Party will comply, at its own expense, with all applicable federal, state, county, and local ordinances, regulations, and codes in performing its obligations hereunder. Each Party represents that it has or will obtain all consents, licenses, permits and certificates required to receive or perform the Services and to do business in the United States. If VOIFONE reasonably believes that continued performance of the Services would cause VOIFONE or Customer to be in violation of any applicable law, statute, ordinance, court order or regulatory agency rules, VOIFONE may cease performing the applicable Service(s) to the extent reasonably required to correct or avoid the violation.
  10. Advertising and Publicity. Except for materials already made public, neither Party will distribute any news releases, articles, brochures, speeches, or advertisements concerning this Agreement, nor use the other Party’s name or trademarks (or any variation thereof), without the other Party’s prior written consent, not to be unreasonably withheld or delayed.
  11. Authority. Each Party represents to the other that
    1. it has full authority to enter into and perform under this Agreement
    2. the person signing this Agreement on its behalf is properly authorized; and
  • has read this Agreement, understands it, and agrees to be bound by all of its terms, conditions, and provisions.
  1. Survival. Sections 3, 4, 6, 7, 9 and 11 will survive the expiration or termination of this Agreement or any Attachment.
  1. Entire Agreement. This Agreement, together with any Attachment(s) or executed amendments, constitutes the Parties’ entire understanding, and supersedes any prior written or oral agreements or understandings, related to the subject matter hereof. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute a single instrument. Execution of this Agreement may be evidenced by a facsimile or scanned electronic (e.g. .pdf, .tif) copy. This Agreement or any Attachment may be modified only by a mutually executed amendment. This Agreement is not enforceable unless properly executed by both parties.

The Parties hereby execute and authorize this Agreement as of the date Customer uses services or logs into their Customer Portal.