Terms & Conditions, Privacy Policy

Rally Networks Feature Rich Hosted Service Privacy Policy

For each visitor to our website, our web server automatically recognizes only the consumer’s

domain name and email address. We collect the domain name and email address of visitors to

our Web page, the e-mail addresses of those who communicate with us via email, information

volunteered by the consumer, such as survey information and/or site registrations, name and

address, telephone number, fax number.

The information we collect is used by us to contact consumers for marketing purposes, not

shared with other organizations for commercial purposes, disclosed when legally required to do

so, at the request of governmental authorities conducting an investigation, to verify or enforce

compliance with the policies governing our Website and applicable laws, or to protect against

misuse or unauthorized use of our Web site and to a successor entity in connection with a

corporate merger, consolidation, sale of assets, or other corporate change respecting the Web

site. If you do not want to receive communications from us in the future, please let us know by

sending us an email at centralcsr@rallynet.us and we will be sure to note your information

accordingly.

From time to time, we may use customer information for new, unanticipated uses not previously

disclosed in our privacy notice. If our information practices change at some time in the future we

will post the policy changes to our Web site to notify you of these changes and provide you with

the ability to opt out of these new uses. If you are concerned about how your information is

used, you should check back at our Web site periodically.

With respect to security, when we transfer and receive certain types of sensitive information

such as financial information, we redirect visitors to a secure server and notify visitors of the

same on our site. We have appropriate security measures in place in our physical facilities to

protect against the loss, misuse or alteration of information that we have collected from you at

our site. If you feel that this site is not following its stated information policy, you may contact us

at the below address or email.

Rally Networks

PO Box 175

New Florence, MO 63363-0175

Rally Networks Feature Rich Hosted Service Terms and Conditions

Rally Networks HOSTED UNIFIED COMMUNICATIONS TERMS AND CONDITIONS

BY ACCEPTING THESE HOSTED COMMUNICATIONS SOLUTIONS TERMS AND

CONDITIONS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE

TO THE TERMS AND CONDITIONS BELOW. ALL SERVICE ORDERS AND SERVICES ARE

SUBJECT TO THESE TERMS AND CONDITIONS.

These Hosted Communications Solutions Terms and Conditions (the “Agreement”) are entered

into by and between Rally Networks (hereafter “RALLY” and “Provider”), a Missouri corporation, and

the customer purchasing products or services from Provider (“Customer”).

1. DEFINITIONS

1.1. “Customer Data” means any data, information or other materials of any nature

whatsoever provided to Provider by Customer or a User in the course of

implementing or using the Services.

1.2. “Service Descriptions” means user manuals and other documentation relating to

the Services that are made available to Customer by Provider in digital or

hardcopy form, as updated from time to time.

1.3. “Service Fee” or “Service Fees” means the monthly or annual fees set forth in

the Service Order to be paid by Customer to Provider as consideration for

Provider’s provision to Customer of the Services, but does not include usage

fees, taxes or regulatory fees or surcharges, which Customer must pay in

addition to the Service Fees.

1.4. “Service Order” means an order for Services or products.

1.5. “Service Plan” means the monthly or annual subscription plan a Customer

agrees to in the Service Order.

1.6. “Service Order Addendum” means a Service Order agreed to by Customer

subsequent to the initial Service Order.

1.7. “Services” means the products or services that are being provided to Customer

as described in the Service Order, including any Additional Services set forth in a

Service Order Addendum accepted by Provider.

1.8. “Software” means any proprietary software owned by, licensed by or which

Provider has a right to sublicense that is used in or used to provide the Services.

“Software” includes, without limitation, any application that Provider makes

available to the Customer for use on a mobile device.

1.9. “User” means a user of the software, client, mobile application or other

web-based application, equipment, feature or functionality provided by Provider

in conjunction with the Services.

2. SERVICES

2.1. Generally, Provider will provide the Services set forth in an accepted Service

Order subject to the terms and conditions of this Agreement. Provider hereby

grants Customer limited, revocable, non-exclusive, non-transferable access to

the Services for use by the number of Users set forth in the Service Order, for

Customer’s own internal business purposes. Provider grants Customer a limited,

revocable, non-exclusive, non-transferable right to use the Services Descriptions

in connection with its use of the Services. Each Service Order will be subject to

Provider’s acceptance, which will be deemed given if Provider thereafter provides

the Services to Customer.

2.2. Conditions. Customer agrees that Provider’s obligations to provide the Services

are expressly conditioned upon (a) Customer’s payment of the fees as and when

due, and (b) Customer’s satisfaction of the technical requirements set forth in the

Services Descriptions for the Services made available to Customer by Provider,

as the same may be updated by Provider from time to time.

2.3. Additional Services. Customers may request an increase in Users or additional

Services at any time during the Term (any such increase, “Additional Services”)

by submitting a Service Order Addendum setting forth the specific Additional

Services desired. Each Service Order Addendum will be subject to Provider’s

acceptance, which will be deemed given if Provider thereafter provides the

Additional Services to Customer. Upon acceptance by Provider, such Service

Order Addendum will be deemed an amendment to the Agreement, subject to all

of the terms and conditions herein, and the Service Fees will be increased to

reflect the Additional Services, subject to the same pricing and payment terms as

are set forth in the Service Order or the Service Order Addendum as applicable.

3. TERM

This Agreement will commence on the date Provider accepts the Service Order

and will continue for the period of time specified in the Service Order (the “Initial

Term”). At the end of the Initial Term, the Agreement will automatically renew for

an additional one-year period (a “Renewal Term”), and will renew at the end of

each Renewal Term for an additional one-year Renewal Term, unless either

party provides the other party, at least thirty (30) days prior to the end of the

Initial Term or applicable Renewal Term, written notification in accordance with

Section 20.1 of its desire to cancel the Services. The Initial Term and any

Renewal Terms are collectively the “Term”.

4. TERMINATION

4.1. Early Termination by Customer. If Customer terminates the Agreement, or some

of the Services provided under the Agreement, before the end of the Initial Term

or any Renewal Term (the “Terminated Term”), Provider will charge Customer,

and Customer will pay, an early termination charge equal to 100% of the monthly

Service Fee for the terminated Services, multiplied by the number of months

remaining in the Terminated Term on the date of termination. The early

termination charge is in addition to the full monthly Service Fee payable for the

month of, and months prior to, termination. Provider will also charge Customer,

and Customer will pay, (a) any unpaid recurring or non-recurring charges waived

by Provider at the beginning of or during the Terminated Term, and (b) the

difference between the MSRP and the price paid by Customer for any equipment

purchased at the beginning of or during the Terminated Term. If Customer or its

User transfers or ports its phone number to a service provider other than

Provider, Customer must also contact Provider to terminate the Services

provided to Customer by Provider.

4.2. Termination by Provider.

4.2.1. Provider is entitled, at its sole discretion, to suspend, terminate or change

the Services without advance notice upon any misuse of the Services in

any way, Customer’s breach of the Agreement, Customer’s failure to pay

any sum due hereunder, suspected fraud or other activity by Customer or

a User that adversely affects the Services, Provider, Provider’s network or

another customer’s use of the Services. Provider will be entitled to

determine, at its sole discretion, what constitutes misuse of the Services,

and Customer agrees that Provider’s determination is final and binding on

Customer. Provider may require, and if required, Customer will pay, an

activation fee as a condition to changing or resuming a terminated or

suspended account.

4.2.2. Provider is entitled to terminate any affected portion of the Services if: (i)

Provider is prohibited by law from providing such portion of the Services;

or (ii) any material rate or term contained herein and relevant to the

affected Services is substantially changed by or as a result of any

regulation or order issued by any court of competent jurisdiction, the

Federal Communications Commission (FCC), any other local, state or

federal government authority, or any carrier or Internet service provider.

4.2.3. Upon termination of this Agreement under this Section 4.2, Customer will

be responsible for the full monthly Service Fee for the month in which

termination occurs, in addition to any accrued but unpaid usage and other

charges.

5. FEES, BILLING AND TAXES

5.1. Payment of Service Fees. Customer will pay the Service Fees for Services

ordered by Customer, and all other amounts due under the Agreement, pursuant

to the terms of this Section 5.

5.2. Credit. The provision of Services is contingent upon establishment of and

continuing credit approval by Provider. Customer hereby consents to Provider’s

procurement of a credit score or report regarding Customer. At any time during

the Term, Provider is entitled to require a deposit or other acceptable form of

security from Customer, as it deems appropriate. In addition, if requested by

Provider, Customer agrees to provide, within two (2) business days of request,

appropriate financial records to evaluate Customer’s continuing ability to pay.

Provider may, immediately and without notice, suspend or terminate the Services

if Customer fails to comply with these security obligations. Upon a payment

default by Customer not cured in a timely manner, Provider will have the right to

offset against any security or deposit held any amounts owed to Provider by

Customer, and to invoice and collect all other amounts owed.

5.3. Billing. Provider will provide Customer with a monthly online billing statement for

the Services provided each calendar month and bill all charges invoiced to

Customer’s account. Such charges will include monthly service fees, storage

charges, activation charges, equipment charges, toll charges, shipping charges,

taxes, regulatory recovery fees and any other applicable charges. Monthly

Service Fees will be paid in advance of each month’s service; any variable

charges associated with usage and any other applicable charges associated with

such usage shall be billed in arrears. Billing for monthly Service Fees

commences upon ordering of the Services, and monthly Services Fees will be

billed pro rata in the months in which such Services commence. Customer

agrees to provide Provider with complete and accurate contact and payment

information, which may include Customer’s credit card information, and Customer

agrees to advise Provider of any changes thereto. To the extent Customer’s

payment method is by credit card, Customer authorizes Provider to charge

Customer’s credit card automatically to pay for Customer’s charges. If a charge

to Customer’s credit card is declined or reversed, or if the account or credit card

has expired or been suspended or closed, or if Customer fails to provide the

Provider with accurate or complete credit card information, the Provider may

suspend or terminate the Services.

5.4. Late/Non-payment. If any charges for the Services are due but unpaid for any

reason, Provider may suspend or terminate the Services and all accrued charges

will be immediately due, plus a late fee of 1.5% per month. A fee may also be

charged to activate a suspended or terminated account. No suspension or

termination of the Services or of this Agreement will relieve Customer from

paying any amounts due hereunder.

5.5. Taxes. All Service Fees and other charges are exclusive of any taxes,

surcharges, public utility fees and regulatory fees (including, without limitation,

Universal Service Fees and E911 taxes). Such taxes and fees will be billed by

Provider and paid by Customer. Taxes and regulatory fees may increase during

the Term, and Customer will pay such increased fees commencing with the next

monthly bill. Should Customer claim an exemption of any taxes or regulatory

fees, Customer must provide official documented and certified proof of such

exemption. In no event will Provider be liable for any taxes due by Customer or

its User, and Customer will defend, indemnify and hold harmless Provider if any

claim for taxes or fees is made. If any amounts paid for the Services are refunded

by Provider, applicable taxes and regulatory fees may not be refundable.

5.6. Regulatory Recovery Fee. A regulatory recovery fee may be charged monthly to

offset costs incurred by Provider in complying with inquiries and obligations

imposed by federal, state and municipal regulatory authorities and the related

legal and billing expenses. This fee is not a tax or charge required or assessed

by any government. The regulatory recovery fee will apply to every phone

number assigned, including toll free and virtual numbers. The regulatory recovery

fee may increase during the Term, and Customer will pay such increased fee

commencing with the next monthly bill.

5.7. Service Fee Changes. Provider may change the Service Fees, the types of

Service Plans and any additional usage charges without advance notice.

Provider will post such changes to its website (rallynet.us).

Notwithstanding the foregoing, the Service Fees agreed upon in Customer’s

Service Order will not be increased during the Initial Term. With respect to any

Renewal Term, the Customer will be charged Provider’s then-current Service

Fees in effect at the commencement of the Renewal Term.

5.8. Availability. Customer acknowledges and agrees that the Services may not be

available 100% of the time. Additionally, Services will not be available in the

event of interruption in Customer’s or its User’s internet or broadband service.

Provider will not credit customers for any interruptions in Service.

5.9. Discounts. From time to time in its sole discretion, Provider may offer promotions

or discounts. Any promotion or discount codes must be provided to Provider

upon purchase of the Services. Customers will not be entitled to a subsequent

credit for such promotions or discounts if not requested at the time of account

creation or change of Service. Promotions and/or discounts may not be used

cumulatively or be used for Services retroactively.

5.10. Billing Disputes. Customers must dispute any charges for the Services in writing

to centralcsr@rallynet.us within thirty (30) days of the date of the charge by

Provider, or Customer waives any objection and further recourse with regard to

such charges. Notwithstanding the foregoing, Customer shall pay all undisputed

charges in accordance with this Agreement.

5.11. Usage Charges. Every call using the Services that originates or terminates in the

Public Switched Telephone Network (“PSTN”), including without limitation other

VoIP networks, accrues applicable toll charges. Customers will not be charged

for monthly usage within the limits of its then-current Service Plan. Usage which

exceeds the limits, if any, of Customer’s then-current Service Plan will be

charged to Customer in accordance with the Service Descriptions at the rates

published at rallynet.us. Calls to phone numbers outside the United

States and Canada will also be charged to the Customer in accordance with the

Service Descriptions at the rates published at rallynet.us.

6. TELEPHONE NUMBER

Any telephone number provided by Provider (“Number”) to the Customer will be

leased and not sold. Provider reserves the right to change, cancel or move the

Number should Provider reasonably determine, its sole discretion, that it is

required to do so as a result of its agreements with its underlying services

providers or for other business purposes related to the provision of the Services.

7. PRIVACY

The Services use the public Internet and third-party networks to transmit voice

communications and data. Provider is not liable for the interception, use or

disclosure of Customer’s or its User’s voice communications or data. Provider

does not represent, warrant or covenant that the Services will maintain the

privacy or security of Customer’s or its Users’ voice communications or data.

Customer acknowledges and agrees that none of its Customer Data is

considered “Customer Proprietary Network Information” under the rules of the

Federal Communications Commission. Customer agrees that Provider is entitled

to monitor Customer’s and Users’ use of the Services to protect, maintain, or

improve the Services; to prevent fraud or misrepresentation by affirmative acts

and/or omissions; to protect Provider, its customers or other third parties affiliated

with Provider; or for any other good cause. If required by law, Customer will

inform its Users that Provider may monitor the Users’ communications and store

and use the Users’ personally identifiable information as necessary to provide the

Services. For Provider’s Privacy Policy, please visit https://rallynet.us.

8. LICENSE; PROHIBITED USES; CUSTOMER RESPONSIBILITIES; LIMITATIONS.

8.1. Customer hereby grants to Provider a license to copy, store, record, transmit,

display, view, print and use Customer Data, solely to the extent necessary to

provide the Services to Customer. Except as expressly provided in this Section 8,

Customer grants to Provider no right, title, interest, or license in the Customer

Data. Customer represents and warrants that it has all necessary consents and

rights to provide personally identifiable information about its Users to Provider,

and Customer will provide such information upon reasonable request by

Provider.

8.2. Customer represents and warrants that it will not use the Services for any illegal,

fraudulent, improper, or abusive purpose or in any way that interferes with

Provider’s ability to provide high-quality Services to other customers, prevents or

restricts other customers from using the Services, or damages any of Provider’s

or other customers’ property. If Provider discovers use of the Services for

anything other than the permitted uses in this Agreement or for any of the

prohibited uses in this Agreement, Provider may at its sole discretion terminate or

suspend all or part of Customer’s Services and charge any applicable fees for the

Services used plus damages caused by such improper use. Prohibited uses

include, but are not limited to: (a) behavior that is illegal, obscene, threatening,

harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing,

tortious or invasive of another’s privacy; (b) sending unsolicited messages or

advertisements, including e-mail, voice-mail, text messages or faxes (commercial

or otherwise) (“spamming”), or otherwise sending bulk or junk e-mail, voice-mail,

text messages or faxes; (c) harvesting or otherwise collecting information about

others, including e-mail addresses, without their consent; (d) negligently,

recklessly, knowingly or intentionally transmitting any material that contains

viruses, time bombs, Trojan horses, worms, malware, spyware or any other

programs that may be harmful or dangerous; (e) creating a false caller identity

(“ID spoofing”) or forged e-mail/text message address or header, or otherwise

attempting to mislead others as to the identity of the sender or the origin of any

communication made using the Services; (f) transmitting any material that may

infringe, misappropriate, or otherwise violate the foreign or domestic intellectual

property rights or other rights of third parties; (g) violating any U.S. or foreign law

regarding the transmission of technical data or software exported through the

Services; (h) using the Services in excess of what, in Provider’s sole discretion,

would be expected of normal business use, including without limitation allowing

more than one user to use a single VoIP line or using a single VoIP line in excess

of what would be expected of a single user; (i) using the Services in any way that

interferes with other customers’ and third parties’ use and enjoyment of the

Services; (j) using or employing methods and/or devices that are designed or

likely to take advantage of, bypass, exploit or otherwise avoid this use policy.

8.3. Customer understands and agrees that: (a) it will be solely liable for any

transmissions sent through the Services under its account or its User’s account,

including the content of any transmission sent through the Services under its

account or its User’s account; (b) it will abide by all applicable Provider policies,

procedures and agreements related to the Services; and (c) it will not attempt to

gain unauthorized access to the Services, other accounts, computer systems or

networks connected to the Services through password mining or any other

means.

8.4. Some of Provider’s plans and other Services are offered on an “unlimited” basis.

All unlimited plans: (a) may only be used for normal commercially reasonable

business use; (b) are provided only for dialog between two individuals at one time

per line; (c) are issued on a “one (1) user per line basis”, meaning that only one

registered User may be assigned to use the Services for any one line; and (d) are

subject to additional usage charges, including but not limited to such charges

associated with international calling, in accordance with the then-current rates

posted to Provider’s website (rallynet.us). Unlimited plans may

not be used for any of the following prohibited uses (which are in addition to the

other prohibited uses applicable to all Services): (i) trunking or forwarding a

Provider Number to another phone number capable of handling multiple

simultaneous calls, or to a private branch exchange (PBX) or a key system; (ii)

spamming or blasting (e.g., sending bulk or junk voice-mails, e-mails, text

messages or faxes simultaneously); (iii) bulk call-in lines (e.g., customer support

or sales call centers, “hotlines”, 900 numbers, sports-line numbers, etc.); or (iv)

auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software

program or other means to continuously dial or place out-bound calls). In

addition, unusually high usage of the Services may impair Provider’s ability to

provide high-quality Services to others and/or indicate unauthorized use of the

Services, in which case Provider may suspend or terminate Customer’s account

or, upon prior notice, convert Customer’s account to a metered calling plan that

charges significantly higher usage rates.

8.5. Customers must report any unauthorized use of the Services to Provider

immediately after Customer discovers such use. Customers are responsible for

all use of the Services, whether authorized or unauthorized. Customers will be

responsible if any of its Users use the Services in a manner prohibited by this

Agreement. Customers will be responsible for any act or omission of a User that

would be a breach of this Agreement if done by Customer.

8.6. Customer acknowledges and agrees that the right to use any Services is

nonexclusive and nontransferable, and Customer will not permit use of the

Services other than for its internal business purposes. Nothing in this Agreement

will pass to Customer or any User title to any of the Services, any trade names,

trade dress, trademarks, service marks, commercial symbols, copyrightable

material, designs, logos and/or any other intellectual property of Provider or its

vendors. Customers will not challenge or attempt to register or otherwise protect

any of Provider’s intellectual property or other rights in the Services.

8.7. Customer will not: (a) copy or adapt the Services for any purpose, except as

specifically permitted under this Agreement; (b) use the Services except in

accordance with all applicable laws and regulations, and except as set forth in

this Agreement; (c) reverse engineer, translate, decompile, or disassemble the

Services; (d) use the Services in any outsourcing, application service provider,

time-sharing or service bureau arrangement, including, without limitation, any use

to provide services or process data for the benefit of, or on behalf of, any third

party other than a User; (e) cause or permit the disabling or circumvention of any

security mechanism contained in or associated with the Services; or (f) delete,

alter, cover, or distort any copyright or other proprietary notices or trademarks

with respect to the Services.

8.8. Customer understands and accepts that, in order to protect Customer against

fraudulent use of the Services, Provider may require Customer to contact

Provider in order to enable calling to certain calling destinations.

8.9. Customer will execute such other documents, provide such other information,

and affirmatively cooperate with Provider, all as may be reasonably required by

Provider relevant to providing the Services.

9. USE AND STORAGE

Provider reserves the right to establish or modify general practices and limits

concerning use of the Services and Software, including, without limitation, the

maximum number of days that content will be retained by the Service and the

maximum disk space or bandwidth capacity that will be allotted on servers owned

or operated by Provider on Customer’s behalf. Where practical, Provider will

provide Customer with prior notice of such new or modified practices; provided,

however, that Provider will have the absolute right to implement such new or

modified practices without prior notice in its sole discretion and without liability of

any kind.

10. ELECTRONIC RECORDING

Customer agrees that there are federal and state statutes governing the

electronic recording of telephone conversations and that Provider will not be

liable for any illegal use of any recording services provided to Customer or its

Users. It is Customer’s responsibility to determine if the electronic recordings are

legal under applicable federal and state laws and to comply with those laws.

Customer will defend, indemnify and hold harmless Provider for any claims,

damages, fines, penalties or costs (including, without limitation, attorneys’ fees)

arising out of Customer’s or its User’s failure to adhere to applicable electronic

recording laws.

11. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF

CUSTOMER COMMUNICATIONS

Customer is solely responsible for maintaining the confidentiality of Customer’s

account login information (including, without limitation, its Users’ account login

information), and will not allow a third party to use the Services. Customer is

solely responsible for any and all activities that occur under Customer’s account

or its User’s account, including, without limitation, fraudulent use of the account.

Customer and its Users must comply with laws regarding online behavior,

acceptable content and the transmission of equipment and information under

applicable export laws. Customer also agrees to comply with applicable local

rules or codes of conduct (including, if applicable, codes of conduct or policies

imposed by employers) regarding online behavior and acceptable content. Use of

the Services is void where prohibited. Customer will immediately notify Provider

of any unauthorized use of Customer’s account or its User’s account or any other

breach of security related to Customer’s account, its User’s account or the

Provider Services. Customer and each User must “log off” at the end of each

session. Provider is not liable for any loss or damage arising from Customer’s or

its User’s failure to comply with any of the foregoing obligations. In consideration

for using the Provider Services, Customer will: (a) provide certain current,

complete and accurate information about Customer and Users when prompted to

do so by the Provider Services, and (b) maintain and update this information as

required to keep it current, complete and accurate. Customer agrees that

Customer is solely responsible for the content of all visual, written or audible

communications (“Content”) sent, displayed or uploaded by Customer or a User

in using the Services. Although Provider is not responsible for any such

communications, Provider may reject or remove any Content that violates a law

or this Agreement. Customer or the User retains copyright and any other rights

already held in Content that Customer or the User submits, posts or displays on

or through, the Services, or any music or ring-tones Customer or a User uses in

connection with the Service. Customer understands and agrees that by

displaying, exchanging or uploading Content to a Provider website, transmitting

Content using the Services or otherwise providing Content to Provider, Customer

automatically grants (and warrants and represents that it has a right to grant) to

Provider a world-wide, royalty-free, sub-licensable (so Provider affiliates,

contractors, resellers and partners can deliver the Services) perpetual,

irrevocable license to use, modify, publicly perform, publicly display, reproduce

and distribute the Content in the course of offering the Services, including,

without limitation, on associated websites (“Sites”). Furthermore, Customer

represents and warrants that it has all necessary consents and rights to transmit

Content and other communications from its users to Provider.

12. RESPONSIBILITY FOR CONTENT OF OTHERS

Customer acknowledges that Users may violate one or more of the above

prohibitions, but Provider assumes no responsibility or liability for such violation.

If Customer becomes aware of misuse of the Services by any person, entity or

organization, Customer agrees to contact Provider Customer Support at

573-835-2500 or centralcsr@rallynet.us. Provider may investigate any

complaints and violations that come to its attention and may take any action that

it believes is appropriate, including, but not limited to, issuing warnings, removing

the content or terminating accounts and/or User profiles. Under no circumstances

will Provider be liable in any way for any data or other content available on a Site

or actions taken while using the Services, including, but not limited to, any errors

or omissions in any such data, content or activity or any loss or damage of any

kind incurred as a result of the use of, access to or denial of access to any data,

content or activities on a Site. Provider does not endorse and has no control over

what Users post, submit to or do on a Site. Customer acknowledges that Provider

cannot guarantee the accuracy of any information submitted by any User of a

Site, nor any personally identifiable information about any User. Provider

reserves the right, in its sole discretion, to reject or remove content.

13. EMERGENCY 911 SERVICES

13.1. Service Limitations. The FCC requires that Provider provide E911 Service to all

Customers who use Provider Services within the United States. Sections

13.2-13.8 apply to all Customers who use Provider Services within the United

States. Section 13.9 applies to all Customers.

13.2. ACKNOWLEDGEMENT AND WARNING LABELS. CUSTOMER

ACKNOWLEDGES THAT PROVIDER’S EQUIPMENT AND SERVICES DO NOT

SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY

FUNCTIONS IN THE SAME WAY THAT TRADITIONAL WIRELINE 911

SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION

13, AND CUSTOMER AGREES TO NOTIFY ALL POTENTIAL USERS WHO

MAY PLACE CALLS USING CUSTOMER’S SERVICES OF THE 911

LIMITATIONS DESCRIBED HEREIN. PRIOR TO THE INITIATION OF

SERVICE, PROVIDER WILL PROVIDE CUSTOMER WITH WARNING LABELS

REGARDING THE LIMITATIONS OR UNAVAILABILITY OF 911 EMERGENCY

DIALING. CUSTOMER AGREES TO PLACE SUCH LABEL ON OR NEAR

EACH TELEPHONE OR OTHER CUSTOMER-PREMISES OR

USER-PREMISES EQUIPMENT ON WHICH THE SERVICES MAY BE USED.

IF ADDITIONAL LABELS ARE REQUIRED, CUSTOMER MAY REQUEST

THEM FROM PROVIDER, AND PROVIDER WILL PROVIDE ADDITIONAL

LABELS. PROVIDER WILL PROVIDE CUSTOMER WITH ADVISORY NOTICES

REGARDING 911 EMERGENCY DIALING AND REQUEST

ACKNOWLEDGMENTS FROM CUSTOMER. CUSTOMER WILL PROVIDE

SUCH ADVISORY NOTICES TO ITS USERS. CUSTOMER AGREES TO

RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT PROVIDER HAS

ADVISED CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH E911

SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON

TO TRADITIONAL 911 EMERGENCY DIALING. CUSTOMER WILL PROVIDE

SIMILAR ACKNOWLEDGEMENTS FROM ITS USERS UPON REQUEST BY

PROVIDER. PROVIDER ADVISES CUSTOMER AND USERS TO MAINTAIN

AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.

13.3. ELECTRICAL POWER. CUSTOMER ACKNOWLEDGES THAT THE

SERVICES, INCLUDING WITHOUT LIMITATION E911 SERVICE, WILL NOT

FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.

13.4. INTERNET ACCESS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES,

INCLUDING WITHOUT LIMITATION E911 SERVICE, WILL NOT FUNCTION IF

THERE IS AN INTERRUPTION OF CUSTOMER’S BROADBAND OR

HIGH-SPEED INTERNET ACCESS SERVICE.

13.5. NON-VOICE SYSTEMS. CUSTOMER ACKNOWLEDGES THAT THE

SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS

SUCH AS HOME SECURITY SYSTEMS, MEDICAL MONITORING

EQUIPMENT, TTY EQUIPMENT, OR ENTERTAINMENT OR SATELLITE

TELEVISION SYSTEMS. PROVIDER WILL NOT BE LIABLE FOR

INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.

13.6. E911 SERVICE. E911 SERVICE IS A MANDATORY COMPONENT OF ALL

INBOUND/OUTBOUND TRADITIONAL FAX AND VOICE SERVICE PLANS.

E911 SERVICE IS NOT OFFERED ON VIRTUAL NUMBERS, OUTSIDE THE

UNITED STATES, ON TOLL-FREE NUMBERS OR ON SIMILAR SERVICE

ACCESSORIES OR ADD-ON SERVICE PLANS. E911 SERVICE IS ONLY

AVAILABLE IN SELECTED AREAS. E911 SERVICE IS TIED TO THE

CUSTOMER’S REGISTERED SERVICE ADDRESS ASSOCIATED WITH THE

ASSIGNED PHONE NUMBER; CUSTOMER IS RESPONSIBLE FOR

PROVIDING PROVIDER WITH ADDRESS INFORMATION FOR CUSTOMER’S

USERS. THE PROVIDER MOBILE APPLICATION USES THE DEVICE’S

DIALER AND CELLULAR TELEPHONE SERVICE TO MAKE 911 CALLS. IF A

DEVICE DOES NOT HAVE CELLULAR TELEPHONE SERVICE, THEN THE

USER WILL NOT BE ABLE TO CALL 911 FROM THE PROVIDER MOBILE

APPLICATION. CUSTOMER ACKNOWLEDGES THAT PROVIDER’S ONLY

MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY

CALL TAKER IS THE CUSTOMER’S OR USER’S REGISTERED SERVICE

ADDRESS ASSOCIATED WITH THE ASSIGNED PHONE NUMBER.

CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED

LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY

PROVIDER WILL BE BASED UPON THE CUSTOMER’S OR USER’S

REGISTERED SERVICE ADDRESS PROVIDED TO PROVIDER BY

CUSTOMER. IN THE EVENT THAT THE REGISTERED SERVICE ADDRESS

ASSOCIATED WITH THE ASSIGNED PHONE NUMBER IS INCORRECT, IS

OUTDATED, OR IS NOT COMPLETE, A 911 CALL MAY BE ROUTED

INCORRECTLY.

13.7. E911 SERVICE CHARGE. CUSTOMERS THAT ARE REQUIRED TO

SUBSCRIBE TO PROVIDER E911 SERVICE WILL BE SUBJECT TO A

MONTHLY E911 SERVICE CHARGE. THE MONTHLY E911 SERVICE FEE

WILL BE IN ADDITION TO THE APPLICABLE SERVICE FEES FOR THE

ASSOCIATED LINE. THE MONTHLY CHARGE FOR PROVIDER E911

SERVICE IS ASSESSED ON A “PER-LINE” (THAT IS, PER PHONE NUMBER

BASIS), AND WILL BE SET AT A LEVEL THAT REIMBURSES PROVIDER FOR

THE DIRECT COSTS IT INCURS IN PROVIDING PROVIDER E911 SERVICE,

INCLUDING EXPENSES PROVIDER INCURS, EITHER DIRECTLY OR

INDIRECTLY, IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911

SURCHARGES, E911 AUTOMATIC LOCATION INFORMATION (ALI)

DATABASE STORAGE, LINE INFORMATION DATABASE AND CALLER ID

(LIDB/CNAM) EXPENSES, AND ANY OTHER TAXES OR SURCHARGES

DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE PROVISION OF

SERVICES TO CUSTOMERS SUBSCRIBING TO THIS SERVICE. PROVIDER

RESERVES THE RIGHT TO ADJUST THE LEVEL OF CHARGES

ASSOCIATED WITH THE PROVISION OF E911 SERVICES TO REFLECT

INCREASES OR DECREASES IN THE COSTS IT INCURS.

13.8. E911 CHARACTERISTICS. CUSTOMER ACKNOWLEDGES THAT PROVIDER

E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT

FROM TRADITIONAL, CIRCUIT-SWITCHED 911 SERVICE. THESE

CHARACTERISTICS MAY MAKE PROVIDER E911 SERVICES UNSUITABLE

FOR SOME CUSTOMERS OR USERS. BECAUSE CUSTOMER AND USER

CIRCUMSTANCES VARY WIDELY, CUSTOMER SHOULD CAREFULLY

EVALUATE ITS OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO

RELY SOLELY UPON PROVIDER E911 SERVICE. CUSTOMER

ACKNOWLEDGES THAT IT IS CUSTOMER’S RESPONSIBILITY TO

DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES

BEST SUITED TO MEET CUSTOMER’S AND ITS USERS’ EMERGENCY

CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR

ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A

CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP

MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING

CHARACTERISTICS DISTINGUISH PROVIDER E911 SERVICE FROM

TRADITIONAL, CIRCUIT-SWITCHED 911 SERVICE:

13.8.1. E911 SERVICE WILL NOT FUNCTION IF CUSTOMER’S OR ITS

USER’S DTA, PHONE OR VIDEOPHONE FAILS OR IS NOT

CONFIGURED CORRECTLY OR IF CUSTOMER’S OR ITS USER’S

PROVIDER SERVICE IS NOT FUNCTIONING FOR ANY REASON,

INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE,

BROADBAND OR OTHER INTERNET SERVICE OUTAGE, OR

SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF

BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE,

CUSTOMER OR THE USER MAY BE REQUIRED TO RESET OR

RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE

THE PROVIDER SERVICE, INCLUDING FOR E911 PURPOSES. E911

SERVICE MAY NOT FUNCTION IF CUSTOMER OR A USER

RELOCATES EQUIPMENT OR USES A NON-NATIVE TELEPHONE

NUMBER, OR FOR ANY OTHER REASON BEYOND PROVIDER’S

CONTROL.

13.8.2. AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND

FOLLOWING ANY CHANGE OF AND UPDATE TO CUSTOMER’S OR A

USER’S PHYSICAL LOCATION, THERE MAY BE SOME DELAY

BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION

IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR.

THIS INFORMATION IS TYPICALLY POPULATED INTO PROVIDER’S

NOMADIC E911 DATABASES PRIOR TO SERVICE ACTIVATION, BUT

NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER

AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS

SCHEDULE.

13.8.3. THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING

PROVIDER E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A

SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO

CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION

INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT

KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE

PERSON WHO IS MAKING THE PROVIDER E911 CALL. DUE TO

TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT

OF NETWORK CONGESTION ON THE PROVIDER NETWORK, THERE

IS A POSSIBILITY THAT A PROVIDER 911 CALL WILL PRODUCE A

BUSY SIGNAL, THE CALLER WILL EXPERIENCE UNEXPECTED

ANSWERING WAIT TIMES OR THE LOCAL EMERGENCY SERVICE

OPERATOR WILL TAKE LONGER TO ANSWER THE CALL THAN 911

CALLS PLACED VIA TRADITIONAL, CIRCUIT-SWITCHED

TELEPHONE NETWORKS.

13.8.4. IF CUSTOMER OR ITS USER DOES NOT CORRECTLY IDENTIFY THE

ACTUAL LOCATION WHERE THE PROVIDER EQUIPMENT WILL BE

LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE,

PROVIDER E911 COMMUNICATIONS MAY NOT BE DIRECTED TO

THE CORRECT LOCAL EMERGENCY OPERATOR.

13.9. E911 LIMITATION OF LIABILITY AND INDEMNITY. CUSTOMER AGREES

THAT PROVIDER WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE OR

INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE

NUMBER USING A PROVIDER SERVICE OR TO ACCESS OR REACH AN

EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING

CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT.

CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS

PROVIDER, ITS OWNERS, MANAGERS, OFFICERS, DIRECTORS,

EMPLOYEES, AFFILIATES AND AGENTS, AND ANY OTHER SERVICE

PROVIDER WHO FURNISHES SERVICES TO CUSTOMER OR A USER IN

CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS,

ACTIONS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND

EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) BY,

OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF THE

SERVICE RELATING TO 911 DIALING OR THE INABILITY TO ACCESS OR

REACH EMERGENCY 911 SERVICES.

14. DISCLAIMER AND LIMITATION OF LIABILITY

PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED,

STATUTORY OR ARISING FROM A COURSE OF DEALING OR

PERFORMANCE OR CUSTOM, WITH RESPECT TO THE SERVICES,

EQUIPMENT, AND ANY OTHER PROVIDER PRODUCTS, SERVICES OR

EQUIPMENT PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO,

WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR

PURPOSE, PERFORMANCE IN A WORKMAN-LIKE MANNER, COMPLIANCE

WITH LAWS, QUALITY, ACCURACY, COMPLETENESS OR CURRENCY OF

INFORMATION, SYSTEM INTEGRABILITY, TITLE, QUIET ENJOYMENT AND

NON-INFRINGEMENT. PROVIDER DOES NOT REPRESENT, WARRANT OR

COVENANT THAT THE PRODUCTS, SERVICES OR EQUIPMENT PROVIDED

WILL OPERATE UNINTERRUPTED, ERROR FREE OR WITHOUT

DEGRADATION OR LOSS OF DATA, OR BE SECURE. NEITHER PROVIDER

NOR ITS SERVICE PROVIDERS WILL BE LIABLE FOR UNAUTHORIZED

ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S

OR A USER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION,

INCLUDING, WITHOUT LIMITATION, ANY SUCH DATA IN PROVIDER’S

POSSESSION, CUSTODY OR CONTROL, THROUGH ACCIDENT,

FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD,

REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF

PROVIDER’S OR ITS SERVICE PROVIDER’S NEGLIGENCE. IN NO EVENT

WILL PROVIDER OR ITS AFFILIATE, SERVICE PROVIDER, FACILITY

OPERATOR OR CARRIER, OR THEIR RESPECTIVE OWNERS, DIRECTORS,

MANAGERS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY,

“PROVIDER PARTIES”) BE LIABLE FOR ANY DIRECT, ACTUAL, INDIRECT,

CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR

ANY COST OF COVER OR LOST PROFITS OF ANY KIND OR NATURE

WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR A

PROVIDER PARTY’S PERFORMANCE OR NONPERFORMANCE OF

OBLIGATIONS HEREUNDER, A FAILURE OF OR A DEFECT IN THE

SERVICES, EQUIPMENT OR ANY PRODUCT, A PROVIDER PARTY’S

VIOLATION OF A THIRD PARTY’S RIGHT, OR A PROVIDER PARTY’S ACTS

OR OMISSIONS. PROVIDER WILL NOT BE LIABLE FOR THE ACTS OR

OMISSIONS OF, A FAILURE OF OR A DEFECT IN ANY PRODUCT OR

SERVICE PROVIDED BY, OR VIOLATION OF ANY THIRD PARTY’S RIGHTS

BY ANY THIRD-PARTY SERVICE PROVIDER, FACILITY OPERATOR OR

CARRIER. THE PROVIDER PARTIES’ MAXIMUM TOTAL LIABILITY TO

CUSTOMER WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO

PROVIDER IN THE THREE (3) MONTHS PRECEDING THE DATE THE CLAIM

ACCRUED. THE PROVIDER PARTIES WILL NOT BE LIABLE IN ANY WAY TO

ANY USER.

15. INDEMNIFICATION

Customer will defend the Provider Parties, at Customer’s expense, against any

third-party claim or action, and indemnify and hold harmless the Provider Parties

from any and all losses, damages, liabilities, penalties, settlement obligations,

costs, attorneys’ fees and other legal expenses related to such third-party claim

or action, arising from or related to: (a) Customer’s breach of this Agreement or

an agreement between Customer and a third party; (b) Customer’s violation,

infringement or misappropriation of the third party’s intellectual property or other

rights in Customer’s use of the Services; (c) Customer’s violation of the third

party’s privacy, publicity, personality or other rights; (d) Customer’s fraud in use

of the Services or fraud or misrepresentation regarding the nature or volume of

Customer’s traffic; (e) Customer’s violation of an applicable law; (f) bodily injury,

death or property damage to the extent such claim or action arises from the

negligence, gross negligence or willful misconduct of Customer, or in the case

where strict liability applies; (g) Customer’s business, acts or omissions; or (h)

acts or omissions by Users that, if done by Customer, would constitute a breach

of this Agreement. Customer will not settle any claim or action without Provider’s

prior written consent. Provider will have the option, at its expense, to participate

in the defense or settlement of the claim or action with counsel of its own

choosing. If a conflict of interests arises or exists between the parties or if

Provider has a good faith belief that its rights are being harmed by the counsel

selected by Customer, Provider will have the right to retain separate counsel to

represent its interests at Customer’s sole cost and expense. Customer will not

settle any claim without Provider’s prior written consent.

16. EQUIPMENT

16.1. Equipment Lease. If the Provider leases any equipment to Customer, the terms

of this Section 16 apply. The Customer agrees to pay the monthly lease of the

equipment for the purposes of internet services. These additional services and

charges will be billed to the Customer’s account. Should this equipment fail due

to regular usage, it will be replaced by Provider at no cost to Customer. Any

equipment found to be defective due to misconduct will be billed to Customer at

$250.

16.2. Equipment Return Policy. Provider may decline Customer’s return or charge

Customer an additional fee for each missing item or for each item that Provider

reasonably determines is modified, damaged or not in good working condition.

Failure to return leased equipment will result in a $250 fee billed to Customer’s

account.

17. MOBILE APPLICATION

Provider may make a mobile application for the Services available to Customer.

Subject to this Agreement, Provider grants to Customer a limited, personal,

revocable, non-exclusive, non-transferable and non-sublicensable license to

install and use the mobile application during the Term. Customer have no other

rights in or to the mobile application. The mobile application is licensed, not sold.

The terms of this Agreement apply to any updated, upgraded or new versions of

the mobile application. Use of the mobile application constitutes use of the

Services. Provider may require Users to agree to additional terms and conditions

governing use of the mobile application, and Customer agrees that its Users will

not be permitted to use the mobile application unless they agree to such terms

and conditions. Customer agrees that from time to time and without notice

Provider may amend, modify, update or upgrade the mobile application or create

new versions of the mobile application. Customer agrees that Provider may

automatically update the version of the mobile application that a User is using on

a mobile device. Customer consents, on behalf of itself and its Users, to such

updating on mobile devices. Updates may cause Customer or users to lose data,

and Provider will not be liable for such loss. Customer agrees that Provider has

no obligation to provide support, maintenance or updates for or to the mobile

application. To the extent the mobile application contains any third-party

software, Customer’s and User’s rights and obligations with respect to such

software will be subject to and governed by the third party’s terms and conditions.

Provider does not make a representation or warranty that the mobile application

will operate on any particular device or operating system. The mobile application

is commercial computer software, and to the extent any U.S. government agency

uses the mobile application, the U.S. government is only granted the limited

rights granted to all other Provider customers. Provider is not a wireless licensee

of the FCC, and the mobile application will not be able to provide access to E911

service unless Customer subscribes to wireless service that complies with the

FCC’s E911 program, as further explained in Section 13.6.

18. INTELLECTUAL PROPERTY

The Services and Software, and all intellectual property therein, are and will

remain the exclusive property of Provider. Provider reserves all rights not

expressly granted under this Agreement. The Software may contain third-party

software that is subject to the terms and conditions of third-party licenses. Neither

Customer, Users nor any other third party has a right to inspect, possess, use,

copy, or attempt to discover the source code of (or any portion of) the Software,

except to the extent that Customer, a User or a third party is expressly permitted

to decompile the Software under applicable law and Customer, the User or the

third party notifies Provider in writing in advance of its intention to decompile the

Software and its reason for doing so.

19. PORTAL UPGRADES; PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE

Provider may update the Customer and User portals, and Customer agrees that

Service may be unavailable during the implementation of such updates. Upon

expiration, cancellation or termination of the Services, Customer and Users will

relinquish and discontinue use of any accounts, Numbers, voice mail access

numbers, and/or web portal Sites assigned to Customer by Provider or its service

providers.

20. MISCELLANEOUS

20.1. NOTICES

Unless otherwise specified in this Agreement, any notice required or permitted to

be given pursuant to this Agreement will be given in writing by overnight delivery

service, sent via certified mail, return receipt requested, e-mailed, or delivered by

hand, and such notice will be deemed to have been given and received when

delivered or when delivery was refused, or with respect to electronic

transmissions, at the time of transmission (unless the sender received a notice of

transmission failure). Customer consents to receive all notices in electronic form,

and Provider may send any notice to Customer at Customer’s latest physical

address or e-mail address provided by Customer. Provider may, in addition to all

other methods of giving notice, send any notice to Customer’s mailbox in

Customer’s account on the Provider Customer Care Portal. Both parties agree

that any agreements and notices made or provided by one or both parties in

electronic form, and in accordance with this Agreement, are as legally binding as

if made in physical written form. Customer must send all notices to Provider via

e-mail in accordance with the following:

To report misuse or fraudulent use of Service: noc@rallynet.us

To submit a billing dispute: centralcsr@rallynet.us

To terminate Service: centralcsr@rallynet.us

All other notices: centralcsr@rallynet.us

20.2. FORCE MAJEURE

Provider’s performance of any part of this Agreement will be excused to

the extent that it is hindered by flood, fire, natural disaster, strike, riot, war,

terrorism, hostile attack, governmental action, cable cuts, supplier

shortages, breaches, or delays, Provider’s inability to perform as a result

of actions or inactions of third parties, Customer, a User or Provider’s

vendors, including, without limitation, Customer’s failure to provide or

maintain a circuit with respect to an order for Service, or any other cause

(whether similar or dissimilar to those listed) beyond Provider’s

reasonable control (a “Force Majeure”). Provider may terminate the

Services without liability if a Force Majeure hinders Provider’s

performance for more than five (5) days.

20.3. NO CLASS ACTION

Customer irrevocably waives any right Customer may have to serve as a

representative or as a private attorney general, or to participate as a

member of a class of claimants, in any lawsuit, arbitration or other

proceeding against any Provider Party arising from, related to or

connected with this Agreement or any Service Order.

20.4. BINDING NATURE AND ASSIGNMENT

Customer’s rights and obligations in this Agreement will not be assigned,

delegated or otherwise transferred in whole or in part without the prior

written consent of Provider. Except as part of the sale of all or

substantially of the assets for Provider or the assignment of this

Agreement, or any rights or obligations thereunder, to any of Provider’s

affiliates (which will not require Customer consent), Provider’s rights and

obligations in this Agreement will not be assigned, delegated or otherwise

transferred in whole or in part without the prior written consent of

Customer, which will not be unreasonably withheld. For sake of clarity,

Provider may assign, delegate and transfer some or all of its rights and

obligations under this Agreement to its affiliates. Except as otherwise

expressly provided herein, this Agreement will inure to the benefit of, and

will bind, the heirs, executors, personal representatives, administrators,

successors and permitted assigns of Provider and Customer.

20.5. GOVERNING LAW

This Agreement and any related Service Orders will be governed by and

construed according to the laws of the State of Missouri, without regard to

its conflict of laws provisions. The U.N. Convention on Contracts for the

International Sale of Goods will not apply to this Agreement.

20.6. ARBITRATION

Any dispute or controversy arising out of or in connection with this

Agreement or any related Service Order, or otherwise related to the

Services, will be resolved by binding arbitration. The Federal Arbitration

Act and federal arbitration law applies to this Agreement. The arbitration

will be administered by the American Arbitration Association (AAA),

conducted by one (1) arbitrator, and conducted in accordance with the

AAA’s Commercial Arbitration Rules. The arbitration will be conducted in

St. Louis, Missouri. The language of the arbitration will be English. The

parties’ briefs and other documents and the arbitrator’s findings and

decision will be confidential unless required to be disclosed by law.

Neither party may use any finding or decision of the arbitrator in existing

or subsequent litigation or arbitration involving any other person, entity or

organization. The arbitrator must have sufficient experience in the

matter(s) at issue. The arbitrator’s decision will follow the plain meaning of

the Agreement and will be final and binding. Neither party will have the

right to appeal an error of law or fact. Each party will bear the cost of

preparing and presenting its case. Judgment on the award rendered by

the arbitrator may be entered in any court having jurisdiction. This

agreement to arbitrate also requires Customer to arbitrate claims against

other parties relating to Services or products provided or billed to

Customer if claims are asserted against Provider in the same proceeding.

Notwithstanding the foregoing, either party may bring suit in court to

enjoin unauthorized access or trespass to its computer networks or any

misappropriation, infringement or violation of its intellectual property

rights. The arbitrator will have the exclusive power to rule on the

formation, interpretation, applicability, validity or enforceability of this

Agreement, including without limitation the validity or enforceability of this

arbitration agreement. The arbitrator will not have the power to conduct

any form of class or collective arbitration nor join or consolidate claims by

or for individuals. If any dispute or controversy arising out of or in

connection with this Agreement or any related Service Order, or otherwise

related to the Services, cannot lawfully be resolved by arbitration, the

complainant must bring any claim or action in the state or federal courts

for St. Louis, Missouri, and the parties waive any objection based on

personal jurisdiction, venue or inconvenient forum.

20.7. ENTIRE AGREEMENT, AMENDMENTS, CONFLICT, SEVERABILITY,

WAIVER, SURVIVAL

This Agreement, all documents referred to herein and any related Service

Order executed by the parties constitute the entire agreement between

the parties and supersede any and all prior agreements and rates

between the parties with respect to the subject matter hereof. No

additions, deletions or modifications to this Agreement or any Service

Order will be binding unless (a) made in a writing signed by duly

authorized representatives of both parties or (b) agreed to by the party to

be charged by electronic means. In the event of a conflict between any of

the terms and conditions of this Agreement and any Service Order, the

terms and conditions in the Service Order will prevail. The parties are

independent contractors. Nothing contained herein will be construed as

creating any agency, partnership, or other form of joint venture or

enterprise between the parties. If any provision(s) of this Agreement or

any related Service Order is held to be invalid, illegal, or unenforceable,

the validity, legality and enforceability of the remaining provisions will not

in any way be affected or impaired thereby, and the parties further agree

to substitute a valid provision that most closely approximates the

economic effect of the invalid provision. The failure of either party to

require performance by the other party of any provision hereof will not

affect the right to require such performance at any time thereafter, nor will

the waiver by either party of a breach of any provision hereof be taken to

be a waiver of the provision itself. To the extent permitted by applicable

law, the parties agree to and do hereby waive any applicable statutory or

common law that may permit a court to construe a contract against its

drafter. No claim or cause of action may be asserted against either party

more than three (3) months after the time the facts giving rise to the claim

or cause of action are discovered or should have been discovered.In the

event a suit is brought or an attorney or collection agency is retained by

Provider to enforce the terms of this Agreement or any Service Order, or

to collect any monies due hereunder, or to collect money damages for

breach thereof, Provider will be entitled to recover, in addition to any other

remedy available at law or in equity, reimbursement for attorneys’ fees,

court costs, collection costs, costs of investigation and other related

expenses incurred in connection therewith.

The terms and provisions contained in this Agreement and any related Service Order that, by

their sense and context, are intended to survive the performance thereof by the parties hereto

will survive the completion of performance and termination of this Agreement, including, without

limitation, payment obligations, the limitations on damages and liability, ownership of intellectual

property, and defense and indemnity obligations.

RALLY SIP TRUNKING TERMS AND CONDITIONS

SERVICE TERMS AND CONDITIONS

BY ACCEPTING THESE SERVICE TERMS AND CONDITIONS, YOU ACKNOWLEDGE THAT

YOU HAVE READ, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS

BELOW. ALL SERVICE ORDERS AND SERVICES ARE SUBJECT TO THESE TERMS AND

CONDITIONS.

These Service Terms and Conditions (the “Agreement”) are entered into by and between

Rally Networks (“RALLY”), a Missouri Corporation, and the customer purchasing products or services

from RALLY (“Customer”).

1. SERVICES AND TERM

Generally, RALLY offers enterprise voice and optional data session initiation protocol

(SIP) trunking services, typically including an integrated access device (IAD).

Broadband service is required for such services and may be provided by you or

purchased from RALLY. The services ordered by Customer from RALLY pursuant to any

RALLY Service Order or addendum thereto (each, a “Service Order”) constitute the

“Services.” The Services shall commence on the date on which the Services are

first made available to Customer (the “Start Date”) and shall continue for the

length of time specified as the Term Commitment on the applicable Service

Order (the “Initial Service Term”). After the Initial Service Term and any

subsequent term (each, a “Service Term”), this Agreement and the applicable

Service Order will renew automatically for an additional twelve (12)-month period,

unless either party provides written notice of cancellation at least thirty (30) days

before the then-current Service Term ends. Billing for Services and related

charges shall commence on the Start Date and shall continue throughout the

Service Term. RALLY reserves the right to decline any Service Order.

2. BROADBAND SERVICE

To use the Services, Customer must have broadband Internet access service

(“Broadband Service”). RALLY may provide Broadband Service as required for the

delivery of Services if specified in the applicable Service Order, and in so doing

may interact with other telecommunications providers. Monthly charges for such

Broadband Service shall begin on the date upon which Customer is notified by

RALLY that such Broadband Service is activated and ready for use, and such

charges shall be detailed on the Service Order and paid by Customer. Provision

of Broadband Service may require that equipment be installed and that, in some

cases, additional wiring be configured at Customer’s premises. Installation or

wiring charges, if any, are not included in the Service Order and will be billed

separately to the Customer. Broadband Service provided by RALLY constitutes a

Service.

3. EQUIPMENT

To use the Services, an integrated access device (IAD) and/or other

RALLY-provided equipment (the “Equipment”) may need to be installed at

Customer’s premises. Customer is responsible for installation of the Equipment,

unless otherwise specified in a Service Order. At all times, such Equipment is

and shall remain the property of RALLY and shall not be considered Customer’s

equipment or a fixture. Customer will not allow the Equipment to become subject

to a lien, security interest or other encumbrance. Customer bears all risk of loss

or damage to the Equipment while it is in Customer’s possession, custody or

control. If Customer ceases receiving Services from RALLY, Customer must return

the Equipment to RALLY undamaged and in its original packaging within thirty (30)

days of the termination of Services. Failure to return same will result in an added

fee in the amount of the manufacturer’s suggested retail price of the non-returned

product. To return Equipment, Customer must request a Return Merchandise

Authorization (RMA) number from RALLY in accordance with RALLY’s Return

Merchandise Policy, available on RALLY’s web site. Customer is responsible for the

cost and risk associated with return shipping of the Equipment. Customer will not

attempt to maintain or repair, or permit a third party to maintain or repair, the

Equipment. Customer agrees to comply with all instructions and requirements

regarding the use and/or care of the Equipment and to take reasonable

measures to protect such Equipment at all times. RALLY will repair or replace, in its

sole discretion, any Equipment that does not perform as specified, at no charge

to Customer, unless it is determined, in RALLY’s sole discretion, that Customer was

directly or indirectly responsible for the Equipment failure. RALLY may provide

updated or new Equipment to Customer from time to time, and RALLY may require

that Customer use the updated or new Equipment to continue to receive the

Services. In some cases, Customer will be permitted to use Customer’s own IAD

and other equipment. In such a case, Customer will be fully responsible for such

equipment, and RALLY makes no representation or warranty with respect to such

equipment or its operation with the Services.

4. INSTALLATION OF EQUIPMENT

If Customer has contracted for RALLY to install the Equipment, Customer shall, at its

expense, have the site prepared prior to RALLY’s arrival and in accordance with

RALLY’s installation site preparation specifications. Customer shall provide any

applicable technical user support during installation at its own expense. If

Customer has not contracted for installation from RALLY, Customer shall at its

expense diligently perform or have performed all installation requirements for the

Equipment. Unless the Service Order specifies that Customer will provide its own

hardware, the Services will be deemed to have been made available to Customer

at the time RALLY provides the Equipment to the Customer for self-installation.

5. OWNERSHIP OF INTELLECTUAL PROPERTY

The Services and Equipment, and all intellectual property therein, are and shall

remain the exclusive property of RALLY. RALLY is not providing any software with the

Services or Equipment provided under this Agreement. There is no license

granted, implied or constructively given to Customer.

6. SERVICE FEES, TARIFFS AND OTHER CHARGES; TAXES.

6.1. Services Fees. The fees for Services will be set forth in the Service Order, and

Customer agrees to pay such fees. Service Fees will be billed in advance of

delivery of the Services. Monthly Services fees will be billed pro rata in the

months in which such Services commence and terminate.

6.2. Bundles of Minutes. Customer may purchase long distance and toll free

Bundles of Minutes (BOM) from RALLY at a discounted rate from RALLY’s prevailing per

minute rate. When purchasing a BOM, Customer commits to a fixed monthly

recurring charge (MRC) for the term purchased. BOM charges are billed upon

purchase. If Customer’s usage exceeds the purchased bundle total in a time

period, RALLY will charge for excess usage at the per minute rate based on

Customer’s subscribed package rate. Unused minutes remaining at the end of

any Service Term expire and do not carry over to a subsequent term. If Customer

declines to purchase a BOM, Customer will be billed monthly in arrears for long

distance and toll free usage at RALLY’s then-prevailing per minute usage rates.

6.3. Tariffs. In addition to the fees for the Services specified in a Service Order,

Customer will be charged RALLY’s applicable usage, access, storage, feature and

other charges included in RALLY’s tariffs (“Tariffs”) but not included as part of

Customer’s selected Services plan. This Agreement incorporates by reference all

applicable rates, terms and conditions of RALLY’s Tariffs, which are available on

RALLY’s web site. This Agreement may be superseded, in whole or in part, by a new

or revised Tariff filed with the jurisdictional regulatory agency or agencies, which

may contain such modifications of the provisions of this Agreement, as RALLY

deems necessary or appropriate. RALLY may modify its Tariffs from time to time in

accordance with applicable Laws and thereby affect Services provided to

Customer hereunder, except that the terms and conditions of this Agreement

shall supplement any such modified Tariff to the extent they are not inconsistent

with the terms and conditions of the Tariff. Customer is responsible for payment

of all applicable charges specified in Tariffs and other charges incurred in

connection with Services provided to Customer’s numbers, network addresses

and authorization codes. Tariff charges are rounded up to the nearest tenth of a

cent when billed (three (3) decimal places). Charges based on per-minute of use

rates for underlying carrier services purchased by RALLY to provide the services will

be calculated on the basis of increments specified by the underlying carrier. Such

increments may vary from carrier to carrier. Tariff charges are invoiced to

Customer in arrears, except access loop charges and certain other charges as

indicated on RALLY’s Tariffs schedule, which are invoiced to Customer upon

purchase. Any service provided by RALLY that is not governed by a Service Order

shall be offered solely in accordance with the applicable rates, terms and

conditions of the Tariffs as the same may be revised from time to time.

6.4. Increases to Fees and Tariffs. The aforementioned notwithstanding and

regardless of any fees or Tariffs stated in a Service Order, RALLY may increase the

fees for the Services and the Tariffs in the same proportion that RALLY’s costs in

providing the Services and related features increase due to mandated regulatory

charges, increases in an underlying carrier’s charges or other factors beyond

RALLY’s reasonable control. Any such rate increase will be charged through to

Customer by RALLY at a rate equal to the increased cost to RALLY, and RALLY will deliver

advance notice of any such rate adjustment (thirty (30) days notice of any such

adjustment of domestic rates, seven (7) days notice of any such adjustment of

international rates).

6.5. Additional Charges. In the event additional charges accrue or are paid by RALLY

as a result of direct Customer requests (for example, a request for maintenance

services), Customer shall reimburse RALLY for such charges. RALLY is entitled to

recover any charges imposed on RALLY by payphone owners or operators.

6.6. Taxes. All charges computed by RALLY are exclusive of any taxes, surcharges,

public utility fees and regulatory fees (including Universal Service Fees and

similar charges). Such taxes and fees shall be invoiced by RALLY and paid by

Customer. Should Customer claim an exemption of any taxes or regulatory fees,

Customer shall provide official documented/certified proof of such exemption. It is

Customer’s ongoing responsibility to ensure its exempt status, and the proof

thereof, remains current. In no event shall RALLY be liable for any taxes due by

Customer, and Customer shall defend and indemnify RALLY if any claim for taxes or

fees is made.

6.7. Termination of Domestic Usage. The “cost per minute” outlined on any Service

Order is based on the assumption that Customer will terminate at least 85% of

Customer’s total domestic usage in a tandem owned and operated by a Regional

Bell Operating Company (“RBOC”) and subject to such RBOC’s tariffed access

charges. RALLY will apply a surcharge of $0.04 per minute of use to the number of

minutes by which Customer’s non-RBOC termination (being defined as the sum

of outbound minutes that terminate in non-RBOC areas plus inbound (toll-free)

minutes that originate in non-RBOC areas) exceeds 15% of Customer’s total

domestic usage. For purposes of the calculation pursuant to this paragraph, the

Operating Company Number (“OCN”) of the originating or terminating automatic

number identification will be used. OCN numbers of 9000 and above are

classified as RBOC and OCN numbers below 9000 are classified as non-RBOC.

The surcharge will be invoiced to Customer in arrears.

7. PAYMENT TERMS

7.1. Payment for RALLY’s invoices shall be due thirty (30) days following the date of each

invoice. Invoices will be sent by regular mail or e-mail or will be made available

on the RALLY Customer Care Portal. If the Customer has agreed to a revenue

commitment and does not meet such commitment on a monthly basis, Customer

shall be liable for 100% of any shortfall, which shall be due within thirty (30) days

of invoice, without set-off or demand. In addition to all other remedies available to

RALLY, a late fee shall be assessed in the amount of 1.5% (or the maximum rate

permitted by law, whichever is less) of the unpaid balance per month until paid in

full for charges not paid within thirty (30) days of the due date. Customer shall

notify RALLY in writing of all disputed amounts in its bills within thirty (30) days of the

invoice date, identifying in reasonable detail the nature and amount of any such

dispute. RALLY shall promptly investigate all timely and appropriately documented

disputes and respond to Customer within thirty (30) days. All amounts not so

disputed shall be deemed final and not subject to further dispute. Customer

agrees to pay RALLY for all amounts billed and not so disputed, and where a dispute

is resolved in favor of RALLY. RALLY will consider fairly any disputes raised in a timely

manner, in good faith and appropriately documented. Customer may pay by

check or credit card only. Customer agrees to provide RALLY with complete and

accurate contact and credit card information, and Customer agrees to advise RALLY

of any changes thereto. Customer authorizes RALLY to charge Customer’s credit

card automatically to pay for Customer’s charges. If a charge to Customer’s

credit card is declined or reversed, or if the account or credit card has expired or

been suspended or closed, or if Customer fails to provide RALLY with accurate or

complete credit card information, RALLY may suspend or terminate the Services.

8. CREDIT

8.1. The provision of Services is contingent upon establishment of and continuing

credit approval by RALLY. Customer hereby consents to RALLY’s procurement of a

credit score or report regarding Customer. At any time during the Service Term,

RALLY is entitled to require a deposit or other acceptable form of security from

Customer, as it deems appropriate. In addition, if requested by RALLY, Customer

agrees to provide, within two (2) business days of request, appropriate financial

records to evaluate Customer’s continuing ability to pay. RALLY may, immediately

and without notice, suspend or terminate the Services if Customer fails to comply

with these security obligations. Upon a payment default by Customer not cured in

a timely manner, RALLY shall have the right to offset against any security or deposit

held any amounts owed to RALLY by Customer, and to invoice and collect

cancellation charges in accordance with Section 11 below.

9. CUSTOMER RESPONSIBILITIES

9.1. Customer represents and warrants that it will comply with (a) RALLY’s Acceptable

Use Policy, available on RALLY’s web site (rallynet.us), and (b) all

applicable laws, regulations, rules, court orders and government agency orders

(“Laws”) in its use of the Services and Equipment.

9.2. Customer assumes all risks of and full responsibility for the use of the Equipment

and any and all other equipment connected or related to the Equipment or

Customer’s computer and telecommunication systems. Customer agrees not to

remove the Equipment from the location at which it was initially installed without

RALLY’s prior written permission.

9.3. Customer will execute such other documents, provide such other information,

and affirmatively cooperate with RALLY, all as may be reasonably required by RALLY

relevant to providing the Services. In particular, Customer accepts the

responsibility for providing RALLY with special access surcharge exemption forms

and letters of agency as may be required by carriers for Services, if any. In

addition, Customer agrees that RALLY has the right to audit Customer’s use of the

Services and will make Customer’s place of business (or other location at which

Equipment is located, if requested by RALLY) available for inspection upon

reasonable notice and during reasonable business hours.

9.4. Customer assumes responsibility for the accuracy and completeness of all

information provided to RALLY in connection with the providing of Services and will

reimburse RALLY for any expenses RALLY reasonably incurs as a result of inaccurate

or incomplete information provided by Customer.

9.5. Customer will not sell, lease or license the Services, Equipment or any part

thereof.

9.6. Customer must report any unauthorized use of the Services or Equipment to RALLY

immediately after Customer discovers such use. Customer is responsible for all

use of the Services and Equipment provided to Customer, whether authorized or

unauthorized.

9.7. Customer will not remove serial numbers or labels from, disassemble, reverse

engineer, decompile, reset or otherwise tamper with the Equipment or any

software embedded therein.

9.8. Customer will not challenge or attempt to register or otherwise protect any of

RALLY’s intellectual property or other rights in the Services and/or Equipment.

10. CONDITIONS AND LIMITATIONS ON SERVICES

10.1. Customer may only use the Services and Equipment in the United States of

America.

10.2. Customer understands and accepts that calls to certain countries may require

RALLY’s assistance in accordance with RALLY’s fraud advisory and policy set forth on

RALLY’s web site (https://rallynet.us) as part of RALLY’s

Acceptable Use Policy.

10.3. Customer understands and accepts that the Services and Equipment will not

function in the case of a power or Internet services failure or outage. Failure or an

outage of power or Internet services will not relieve Customer of its payment

obligations under this Agreement. During such a failure or outage, Customer will

not be able to call for 911 or other emergency services.

11. CANCELLATION, SUSPENSION AND TERMINATION

11.1. Cancellation by Customer. Upon thirty (30) days written notice, Customer may

cancel the Services or any portion thereof provided pursuant to a Service Order.

Such notice of cancellation must be accompanied by payment in full for all

Services to be provided during such thirty (30)-day notice period plus a

cancellation charge (“Cancellation Charge”) as follows: (a) 100% of the total

remaining monthly recurring charges for the remaining balance of a one (1)-year

Service Term; (b) 75% of the total remaining monthly recurring charges for the

remaining balance of a two (2)-year Service Term; (c) 50% of the total remaining

monthly recurring charges for the remaining balance of a three (3)-year Service

Term; (d) any discounts of the non-recurring install charge (NRC) that had been

applied; and (e) the local number porting cancellation fee, if applicable.

11.2. Suspension or Termination by RALLY. RALLY may terminate this Agreement and any

and all Service Orders, and the delivery of Services thereunder, at any time upon

RALLY giving Customer two (2) business days written notice of such termination,

during which time the Customer shall have the opportunity to cure, in the event

that RALLY determines, in its sole and absolute discretion, that: (a) Customer has

failed to make payments or to perform any other obligation or condition of this

Agreement or a Service Order; (b) Customer is using the Services in a manner

that interferes with or otherwise disrupts services provided by RALLY to others; (c)

Customer has used, attempted to use, intends to use or is using the Services in

violation of any applicable Law; (d) Customer is insolvent, has made a general

assignment for the benefit of creditors, has filed, or had filed against it, a petition

in bankruptcy, or has had a receiver or trustee appointed for it or any of its

assets; (e) Customer has made an unauthorized assignment of the Agreement or

a Service Order; or (f) in the event that RALLY has required Customer to provide a

forecast covering a good faith estimate of the traffic volume and distribution for

the ordered Services, Customer’s usage exceeds such forecast provided. In the

event of termination by RALLY under this Section 11.2, Customer shall pay to RALLY,

upon demand, all amounts specified in Section 11.1 hereof, as a cancellation

charge and not as a penalty, and RALLY may exercise any and all remedies at law,

in equity and/or under this Agreement. RALLY may suspend any or all of the

Services being provided to Customer immediately if any of the foregoing grounds

for termination exists. If Services are suspended, a restoration charge may apply

and a deposit in an amount equal to one (1)-month’s recurring charges, or

greater, may be required, at RALLY’s sole discretion, prior to RALLY restoring the

Services. In addition, if RALLY discovers or suspects that Customer has engaged in,

attempted to engage in, intends to engage in or is engaging in fraudulent or other

unlawful activity, RALLY has the right to provide Customer’s contact information to

the police and other government authorities. RALLY may also terminate this

Agreement, the Services and all related Service Orders at the end of the term

stated in the Service Order by providing written notice to Customer prior to

expiration of the then-current term; RALLY has no obligation to permit renewal of the

Services and/or Service Orders.

11.3. Additional Cancellation and Termination Charges. In the event of any

cancellation or termination described in this Agreement, Customer shall also pay

RALLY an amount equal to any and all Tariffs, termination charges, porting fees,

expenses, taxes, fees, costs and additional charges due under any and all

applicable Service Orders, and any charges due to any carrier or Broadband

Service provider that has provided services to Customer.

11.4. Cancellation for Legal Compliance. Notwithstanding the foregoing, and upon

thirty (30) days prior written notice, either Customer and RALLY shall have the right,

without payment of any cancellation charge or other liability, to cancel any

affected portion of the Services if: (a) RALLY is prohibited by Law from providing

such portion of the Services; (b) any material rate or term contained herein and

relevant to the affected Services is substantially changed by or as a result of any

regulation or order issued by any court of competent jurisdiction, the Federal

Communications Commission, any other local, state or federal government

authority, or any carrier or Broadband Service provider; or (c) any carrier or

Broadband Service provider from which RALLY is purchasing and reselling services

to Customer is unable to provide its services to RALLY.

12. EMERGENCY 911 SERVICES

12.1. Generally. Emergency 911 services (including without limitation Enhanced 911

(E911) services) that may be provided by RALLY in connection with the Services

may differ in certain respects from the emergency calling services provided by a

traditional wire-line telecommunications provider. These differences may

adversely affect the availability and/or timeliness of the provision of 911 services

to Customer or others in the event of an emergency. Customer may have to

enable 911 services on its devices or Services account. 911 dialing are not

automatic. When a user dials 911 using the Services, the user will be routed to

the general telephone number for the public safety answering point (PSAP) or

local emergency service provider (which may not be answered outside business

hours), and may not be routed to the 911 dispatcher(s) who are specifically

designated to receive incoming 911 calls using traditional wire-line

telecommunications 911 dialing. RALLY relies on third parties for the forwarding of

information underlying the routing of 911 calls, and accordingly RALLY disclaims any

and all liability or responsibility in the event such information is incorrect or

delayed, or in the event the routing of a 911 call fails. In addition, due to

limitations in technology, the location reported by RALLY to the public safety

dispatcher for Customer’s telephone may not include the Customer’s specific

office or other location within a business premises. Due to the inherent limitation

in RALLY’s provision of 911 services, CUSTOMER SHOULD ALWAYS HAVE AN

ALTERNATE MEANS OF ACCESSING EMERGENCY 911 SERVICES.

12.2. Locations of Users. Customer is responsible for the accurate reporting of the

physical location where the Services are to be used and for instructing each

employee, agent and contractor that he/she must provide RALLY with the specific

location in which he/she is located within the Customer’s premises in the event of

an emergency. Customer is required to maintain valid E911 addresses for each

of Customer’s physical locations where the Services are deployed. Should an

emergency arise, emergency services may be delayed or may be unable to

respond to Customer’s needs if Customer’s account does not have a valid E911

address on file. Failure to provide and maintain valid and current information as

to the physical location of the telephone(s) could result in a charge to the

Customer’s account. In the event that any equipment used in connection with the

Services is moved to another location, Customer is responsible for notifying RALLY

and updating Customer’s account records to reflect the new address where the

Services are to be provided, and for instructing each employee, agent and

contractor that he/she must update RALLY promptly when such employee, agent or

contractor changes the physical location to which the Services are being

provided. Even though Customer will be able to use the Services in the event

Customer changes the physical location where the Services are to be provided,

failure to update emergency dispatch information promptly could result in the

failure to dispatch.

12.3. Limitations. As indicated in Sections 12.1 and 12.2, RALLY’s provision of Enhanced

911 service has several limitations. Those limitations may prevent Customer from

making emergency calls. Additional factors that could result in Enhanced 911

failures include but are not limited to any of the following:

● Loss of electrical power

● Loss of Internet connection for any reason

● Defective customer premises equipment

● Network congestion

● Delays in updating Customer’s registered service address

● Unavailability of E911 service for phones or addresses outside the

United States or Canada.

Customer should inform all employees, agents and contractors who may have

access to E911 service about this section of the Agreement and make sure they

understand the terms and conditions under which the E911 service is available.

Customer is solely responsible for marking its telephones and any other devices

regarding the potential non-availability of traditional 911 or E911 dialing. In

addition, Customer should inform its employees, agents and contractors of the

following guidelines for use of 911 or E911 service in connection with the

Services:

● Do not hang up from a 911 or E911 emergency service call unless

and until instructed to do so by the 911 operators.

● If the call is disconnected for any reason, immediately dial 911

again.

● The caller must be prepared to provide a physical address and a

callback telephone number to the 911 operators.

13. DISCLAIMER AND LIMITATION OF LIABILITY

13.1. GENERALLY. RALLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED,

STATUTORY OR ARISING FROM A COURSE OF DEALING OR

PERFORMANCE, WITH REPSECT TO THE SERVICES, EQUIPMENT, AND

ANY OTHER RALLY PRODUCTS, SERVICES OR EQUIPMENT PROVIDED

HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF

MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,

PERFORMANCE IN A WORKMAN-LIKE MANNER, COMPLIANCE WITH

LAWS, QUALITY, ACCURACY, COMPLETENESS OR CURRENCY OF

INFORMATION, SYSTEM INTEGRABILITY, TITLE, QUIET ENJOYMENT AND

NON-INFRINGEMENT. RALLY DOES NOT REPRESENT, WARRANT OR

COVENANT THAT THE PRODUCTS, SERVICES OR EQUIPMENT PROVIDED

WILL OPERATE UNINTERRUPTED, ERROR FREE OR WITHOUT

DEGREDATION OR LOSS OF DATA, OR BE SECURE. IN NO EVENT WILL

RALLY OR ITS AFFILIATE, THIRD-PARTY SERVICE PROVIDER, FACILITY

OPERATOR OR CARRIER, OR THEIR RESPECTIVE OWNERS, DIRECTORS,

MANAGERS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, “RALLY

PARTIES”) BE LIABLE FOR ANY DIRECT, ACTUAL, INDIRECT,

CONSEQUENTIAL, SPECIAL, PUNITIVE OR ANY OTHER DAMAGES, OR

FOR ANY COST OF COVER OR LOST PROFITS OF ANY KIND OR NATURE

WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR AN

RALLY PARTY’S PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS

HEREUNDER, A FAILURE OF OR A DEFECT IN THE SERVICES,

EQUIPMENT OR ANY PRODUCT, AN RALLY PARTY’S VIOLATION OF A THIRD

PARTY’S RIGHT, OR AN RALLY PARTY’S ACTS OR OMISSIONS. RALLY WILL NOT

BE LIABLE FOR THE ACTS OR OMISSIONS OF, A FAILURE OR A DEFECT IN

ANY PRODUCT OR SERVICE PROVIDED BY, OR VIOLATION OF ANY THIRD

PARTY’S RIGHTS BY ANY THIRD-PARTY SERVICE PROVIDER, FACILITY

OPERATOR OR CARRIER. THE RALLY PARTIES’ MAXIMUM TOTAL LIABILITY

TO CUSTOMER WILL NOT EXCEED ONE MONTH’S RECURRING CHARGES

UNDER THE RELEVANT SERVICE ORDER.

13.2. EMERGENCY 911 SERVICES. IN ADDITION TO THE FOREGOING, IN NO

EVENT WILL ANY RALLY PARTY BE LIABLE FOR ANY CLAIM, DAMAGE, OR

LOSS RELATED TO 911 DIALING OR THE INABILITY TO REACH 911

EMERGENCY SERVICES, AND CUSTOMER HEREBY WAIVES AND

RELEASES ALL CLAIMS AND ACTIONS ARISING FROM OR RELATED TO

911 DIALING OR THE INABILITY TO REACH 911 EMERGENCY SERVICES.

CUSTOMER AGREES TO DEFEND AND INDEMNIFY THE RALLY PARTIES

FROM AND AGAINST ANY CLAIM OR ACTION, AND ANY AND ALL RELATED

LOSSES, DAMAGES, LIABILITIES, PENALTIES, SETTLEMENT

OBLIGATIONS, COSTS, ATTORNEYS’ FEES AND OTHER LEGAL

EXPENSES, RELATED TO 911 DIALING OR THE INABILITY TO REACH 911

EMERGENCY SERVICES.

14. INDEMNIFICATION

14.1. Indemnification by RALLY. RALLY will defend Customer, at its expense, against any

third-party claim or action, and indemnify Customer from any and all losses,

damages, liabilities, settlement obligations, costs, attorneys’ fees and other legal

expenses related to such third-party claim or action, for bodily injury, death or

property damage arising from RALLY’s gross negligence or willful misconduct.

Customer must: (a) promptly notify RALLY in writing of the claim or action; (b) allow

RALLY to control, and cooperate with RALLY in, the defense and any related settlement

negotiations; and (c) be and remain in compliance with this Agreement.

14.2. Indemnification by Customer. Customer will defend the RALLY Parties, at

Customer’s expense, against any third-party claim or action, and indemnify the

RALLY Parties from any and all losses, damages, liabilities, penalties, settlement

obligations, costs, attorneys’ fees and other legal expenses related to such

third-party claim or action, arising from or related to: (a) Customer’s breach of this

Agreement or an agreement between Customer and a third party; (b) Customer’s

violation, infringement or misappropriation of the third party’s intellectual property

or other rights in Customer’s use of the Services or Equipment; (c) Customer’s

violation of the third party’s privacy, publicity, personality or other rights; (d)

Customer’s fraud in use of the Services or Equipment or fraud or

misrepresentation regarding the nature or volume of Customer’s traffic; (e)

Customer’s violation of an applicable Law; (f) bodily injury, death or property

damage to the extent such claim or action arises from the negligence, gross

negligence or willful misconduct of Customer, or if strict liability applies; or (g)

Customer’s business, acts or omissions. Customer will not settle any claim or

action without RALLY’s prior written consent. RALLY will have the option, at its expense,

to participate in the defense or settlement of the claim or action with counsel of its

own choosing. If a conflict of interests arises or exists between the parties or if

RALLY has a good faith belief that its rights are being harmed by the counsel

selected by Customer, RALLY will have the right to retain separate counsel to

represent its interests at Customer’s sole cost and expense.

15. PRIVACY

The Services use the public Internet and third-party networks to transmit voice

communications and data. RALLY is not liable for the interception, use or disclosure

of Customer’s voice communications or data. RALLY does not represent, warrant or

covenant that the Services or Equipment will maintain the privacy or security of

Customer’s voice communications or data.

16. NOTICES

Any notice required or permitted to be given pursuant to this Agreement shall be

given in writing by overnight delivery service, sent via certified mail, return receipt

requested, emailed, or delivered by hand, and such notice shall be deemed to

have been given and received when delivered or when delivery was refused, or

with respect to electronic transmissions, at the time of transmission (unless the

sender received a notice of transmission failure). RALLY may send any notice to

Customer at Customer’s latest physical address or email address provided by

Customer. RALLY may, in addition to all other methods of giving notice, send any

notice to Customer’s mailbox in Customer’s account on the RALLY Customer Care

Portal. Customer must send all notices to the physical address, or email address

stated on RALLY’s web site (rallynet.us) as RALLY’s current contact

information.

17. FORCE MAJEURE

RALLY’s performance of any part of this Agreement shall be excused to the extent

that it is hindered by flood, fire, natural disaster, strike, riot, war, terrorism, hostile

attack, governmental action, cable cuts, supplier shortages, breaches, or delays,

or any other cause (whether similar or dissimilar to those listed) beyond RALLY’s

reasonable control (“Force Majeure”). RALLY may terminate the Services without

liability in the case a Force Majeure hinders RALLY’s performance for more than five

(5) days.

18. ENFORCEMENT

In the event a suit is brought or an attorney or collection agency is retained by

RALLY to enforce the terms of this Agreement or any Service Order, or to collect any

monies due hereunder, or to collect money damages for breach thereof, RALLY shall

be entitled to recover, in addition to any other remedy available at law or in

equity, reimbursement for reasonable attorneys’ fees, court costs, collection

costs, costs of investigation and other related expenses incurred in connection

therewith.

19. ENTIRE AGREEMENT

This Agreement, all documents referred to herein and any related Service Order

executed by the parties constitute the entire agreement between the parties and

supersede any and all prior agreements between the parties with respect to the

subject matter hereof. No additions, deletions or modifications to this Agreement

or any Service Order shall be binding unless (a) made in a writing signed by both

parties or (b) agreed to by the party to be charged by electronic means. In the

event of a conflict between any of the terms and conditions of this Agreement

and any Service Order, the terms and conditions in the Service Order shall

prevail.

20. NO CLASS ACTION

Customer irrevocably waives any right Customer may have to serve as a

representative or as a private attorney general, or to participate as a member of a

class of claimants, in any lawsuit, arbitration or other proceeding against any RALLY

Party arising from, related to or connected with this Agreement.

21. BINDING NATURE AND ASSIGNMENT

This Agreement and any related Service Orders shall be binding upon and inure

to the benefit of the parties hereto and their respective successors or assigns;

provided, however, that Customer shall not assign or transfer its rights or

obligations hereunder without the prior written consent of RALLY. RALLY may

subcontract all or any part of the Services provided and assign and transfer its

rights and obligations under this Agreement.

22. ELECTRONIC COMMUNICATIONS

Customer consents to receive all notices in electronic form. Both parties agree

that any agreements and notices made, accepted and/or given by one or both

parties in electronic form are as legally binding as if made in physical written

form.

23. ONLINE ACCOUNT RESPONSIBILITY

Customer is solely responsible for protecting the secrecy of its username and

password. Customer will be liable for any access and/or use of its account,

authorized or unauthorized, using Customer’s username and password.

Customer must notify RALLY immediately if it suspects unauthorized use of its

account.

24. INDEPENDENT CONTRACTORS

The parties are independent contractors. Nothing contained herein shall be

construed as creating any agency, partnership, or other form of joint venture or

enterprise between the parties.

25. GOVERNING LAW

This Agreement and any related Service Orders shall be governed by and

construed according to the laws of the State of Illinois, without regard to its

conflict of laws provisions.

26. LIMITATION ON CLAIMS

No cause of action may be asserted against either party more than one (1) year

after the time the facts giving rise to the cause of action are discovered or should

have been discovered.

27. ARBITRATION

Any dispute or controversy arising out of or in connection with this Agreement or

any related Service Order, or otherwise related to the Services or Equipment,

shall be resolved by binding arbitration. The Federal Arbitration Act and federal

arbitration law applies to this Agreement. The arbitration will be administered by

the American Arbitration Association (AAA), conducted by one (1) arbitrator, and

conducted in accordance with the AAA’s Commercial Arbitration Rules. The

arbitration shall be conducted in St. Louis, Missouri. The parties’ briefs and other

documents and the arbitrator’s findings and decision will be confidential unless

required to be disclosed by law. Neither party may use any finding or decision of

the arbitrator in existing or subsequent litigation or arbitration involving any other

person, entity or organization. The arbitrator must have sufficient experience in

the matter(s) at issue. The arbitrator’s decision shall follow the plain meaning of

the Agreement and shall be final and binding. Neither party shall have the right to

appeal an error of law or fact. Each party shall bear the cost of preparing and

presenting its case. The fees and expenses of the AAA, including the arbitrator,

shall be the responsibility of the non-prevailing party. Any claim or action to enter

or enforce the award shall be initiated in the state or federal courts for St. Louis,

Missouri. Notwithstanding the foregoing, either party may bring suit in court to

enjoin unauthorized access or trespass to its computer networks or any

misappropriation, infringement or violation of its intellectual property rights. The

arbitrator will have the exclusive power to rule on the formation, interpretation,

applicability, validity or enforceability of this Agreement, including without

limitation the validity or enforceability of this arbitration agreement. The arbitrator

will not have the power to conduct any form of class or collective arbitration nor

join or consolidate claims by or for individuals.

28. FORUM

If any dispute or controversy arising out of or in connection with this Agreement

or any related Service Order, or otherwise related to the Services or Equipment,

cannot lawfully be resolved by arbitration as described in Section 27, the

complainant must bring any claim or action in the state or federal courts for

Springfield, Illinois, and the parties waive any objection based on personal

jurisdiction, venue or forum non conveniens.

29. SEVERABILITY

If any provision(s) of this Agreement or any related Service Order shall be held to

be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the

remaining provisions shall not in any way be affected or impaired thereby and the

parties further agree to substitute a valid provision that most closely

approximates the economic effect of the invalid provision.

30. WAIVER

The failure of either party to require performance by the other party of any

provision hereof shall not affect the full right to require such performance at any

time thereafter, nor shall the waiver by either party of a breach of any provision

hereof be taken or held to be a waiver of the provision itself.

31. CONSTRUCTION

To the extent permitted by applicable law, the parties agree to and do hereby

waive any applicable statutory and common law that may permit a court to

construe a contract against its drafter.

32. SURVIVAL

The terms and provisions contained in this Agreement and any related Service

Order that, by their sense and context, are intended to survive the performance

thereof by the parties hereto shall survive the completion of performance and

termination or cancellation, including, without limitation, the making of any and all

payments due hereunder.