TERMS AND CONDITIONS

UPDATED: January 1, 2025

INTRODUCTION

Before using the Services, please read these Gabbit, LLC Terms & Conditions (the “Terms”). These Terms are incorporated by reference into the Service Order submitted by the party identified as the “Customer” in the Service Order (the “Customer” or “You”). These Terms, the Service Order, together with any other lease, activation, or commitment including, but not limited to, a Service Contract, that you enter into in connection with obtaining Services and/or Equipment, collectively form a binding and executed written agreement (the “Agreement”) between you and Gabbit, LLC, its affiliates, and subsidiaries (“Gabbit,” “Us” or “We”) effective as of the Effective Date. Each of Gabbit and Customer is sometimes referred to herein as a “Party” and collectively, the “Parties.” For the purposes hereof, “Customer” shall be deemed to include all employees, agents, and representatives of Customer.

Capitalized terms used in this Agreement but otherwise not defined herein shall have the meanings ascribed thereto in Section 1, below.

THIS AGREEMENT CONTAINS AN OPTIONAL BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. SEE SECTION 17 FOR MORE INFORMATION.

BY PURCHASING OR USING THE EQUIPMENT OR SERVICES, YOU CONSENT TO GABBIT’S COLLECTION, USE AND DISCLOSURE OF CUSTOMER’S PERSONAL INFORMATION IN ACCORDANCE WITH GABBIT’S PRIVACY POLICY at https://gabbit.com/privacy-policy.

This Agreement contains Your consent for Gabbit to contact You via telephone or SMS message including text messaging) using the phone numbers and email addresses You provide to Gabbit, including via automated dialing or texting systems.

Pursuant to FCC requirements, Gabbit is required to advise its customers of any limitations that E911 service may have in comparison to traditional 911 service, which are set forth in Section 8 below. If You are uncomfortable with the limitations of the Gabbit E911 service, You should consider using an alternative means of access to traditional 911 or E911 services or discontinuing the Services. It is strongly recommended that you have an alternative means for placing emergency calls available at all times.

Customer and its End Users may use the Services only in compliance with this Agreement, applicable Law, and the Use Policies set forth herein. Customer may not use or permit the use of the Services to interfere with the use of the Services by others, or with the operation of the Gabbit Network. Customer must ensure that its End Users comply with the Use Policies. A violation of any Use Policy will be deemed a material breach of this Agreement.

The Customer’s use of Gabbit Services shall be deemed to be an acknowledgment by the Customer that the Customer has read and agreed to these Terms. If the Customer does not agree to these Terms, neither Customer nor its End Users may download, install, or use the Services, the App, or Equipment.

1. DEFINITIONS

“Account(s)” means the numbered account established with Gabbit and associated with Customer and the Services provided to Customer under this Agreement. For billing and convenience purposes, multiple services, Digital Lines, or End Users may be included in a single billing account, and/or a single Customer may have multiple billing accounts encompassing different Service Locations, business units, or other designations as reasonably requested by Customer and accepted by Gabbit.

“Account Administrator(s)” means the person(s) who has been granted authority by Customer to set up, amend, or otherwise control Account settings and/or make changes to the Services being provided to the Customer. An Account Administrator may have varying levels of Account rights, skills, or permissions.

“Account Data” means: (a) any business contact information provided with the Account; (b) Gabbit-generated logs of calling or other metadata developed or collected in the provision of the Services; (c) configuration data; and (d) records of Digital Lines and any Services purchased under this Agreement.

“Administrative Fees” means any administrative recovery fees, 911 cost recovery fees and the like charged by Gabbit to Customer.

“Administrative Portal” or “Admin Portal” means the unique online administrative portal through which Account Administrators control Account settings and/or make changes to the Services.

“Affiliate(s)” means a person or entity that is controlled by a Party hereto, controls a Party hereto, or is under common control with a Party hereto, and “control” means beneficial ownership of greater than fifty percent (50%) of an entity’s then-outstanding voting securities or ownership interests.

“Application”, “App” or “Mobile Application” means the Gabbit Mobile Application that is made available to Customers and End Users.

“Basic Subscriber Information” means a report which shows basic subscriber information including, to the extent Gabbit’s customer completed the fields upon registration: (a) Customer’s name (and company name, if applicable); (b) contact telephone number; (c) physical or mailing address; (d) email address(es); and (e) date of account activation, deactivation date and billing cycle dates.

“Billing History Information” means a report which gives very basic information in the form of line-item transactions related to customer invoicing and payments.

“Billing Start Date” means the earlier of: (a) the Service Start Date; or (b) thirty (30) days following acceptance of the Customer’s Order (unless otherwise agreed to by Gabbit in writing).

“Collection Risk” means any Customer that is delinquent pursuant to Section 3 (b) (iii), below, for two (2) or more consecutive months or any Customer who has been delinquent three (3) times in any six (6) month period.

“Confidential Information” means any information disclosed by or on behalf of the Disclosing Party to the Receiving Party that should reasonably be considered as confidential given the nature of the information and the circumstances surrounding its disclosure.

“Customer Content” means the content of calls, facsimiles, SMS messages, voicemails, voice recordings, shared files, conferences, or other communications transmitted or stored through the Services.

“Customer-Provided Equipment” means all equipment, facilities, software, network architecture/design, wiring, or devices supplied by Customer (or any other third-party) for use, or used by, Customer in connection with the Services.

“Digital Line(s)” means a phone number assigned to an End User or a specifically designated location (e.g., conference room) and the associated voice service for inbound and outbound calling that permits an End User generally to make and receive calls to and from the public switched telephone network as well as to and from other extensions within the same Account.

“Disclosing Party” means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed by such Party’s agents, including but not limited to, its Affiliates, officers, directors, employees, and attorneys.

“Dispute” has the meaning set forth in Section 17 (a), below.

“Effective Date” means the date that an Order is accepted and processed by Gabbit, or such other date as may be provided in a Service Contract.

“Electronic Signature” means an electronic sound, symbol, or process (including clicking a digital button to accept) that is attached to or logically associated with a contract, instrument, or other record and executed or adopted by a person with the intent to sign the record and be bound thereby.

“End Point” means an application or device through which any End-User might access and/or use any of the Services, including without limitation desktop, tabletop (conference) and cordless IP phones, desktop and web-based clients, software integrations, video conferencing tools and the Mobile Application.

“End User(s)” means an individual user to whom Customer makes the Services available and may include but is not limited to Customer’s employees, consultants, clients, external users, invitees, contractors, and agents.

“Equipment” means all hardware (including but not limited to phones, headsets, routers, cables and charging units) used or useful in connection with the Services, whether or not the same is Purchased Equipment, Gabbit Equipment or Customer-Provided Equipment.

“Force Majeure Event” means any event or circumstance that is beyond that Party’s control, which are considered without limitation as force majeure including but not limited to: any act of God; national emergency; third-party telecommunications network failure or malfunction; riot; war; terrorism; governmental act or direction; change in Laws; fiber, cable, or wire cut; sub-processor failure; power outage or reduction; rebellion; revolution; insurrection; earthquake; storm; hurricane; flood, fire, or other natural disaster; strike or labor disturbance; or other cause, whether similar or dissimilar to the foregoing, not resulting from the actions or inactions of such Party.

“Gabbit Customer Care” means Gabbit’s Customer support operations, available at 855-542-2248 or via email at support@gabbit.com.

“Gabbit Equipment” means all facilities, equipment or devices provided by Gabbit or its authorized contractors at any Service Location that are used to deliver any of the Services including, but not limited to, all terminals, wires, modems, lines, circuits, ports, routers, gateways, switches, channel service units, data service units, cabinets, and racks. Notwithstanding the above, inside telephone wiring, whether or not installed by Gabbit, shall not be considered Gabbit Equipment.

“Gabbit Materials” means all materials including, but not limited to, any Gabbit Equipment (including related firmware), software, data and information provided by Gabbit, any identifiers or passwords used to access the Services or otherwise provided by Gabbit, and any know-how, methodologies or processes including, but not limited to, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto, used by Gabbit to provide the Services.

“Gabbit Network” means the network and supporting facilities operated by Gabbit including the interconnection point between Gabbit’s network and facilities, and the public Internet, private IP networks, and the Public Switched Telephone Network (PSTN). The Gabbit Network does not include the public Internet, a Customer’s own private network, or the PSTN.

“Indemnifying Party” and “Indemnified Party” have the meanings set forth in Section 15.

“Intellectual Property” means: (a) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (b) copyrights and copyright registrations, and “moral” rights; (c) trademarks, trade names, trade secrets, and service marks; (d) Confidential Information; and (e) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity.

“Intellectual Property Rights” or “IP Rights” means all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (a) Intellectual Property; (b) the protection of trade and industrial secrets and Confidential Information; (c) other proprietary rights relating to intangible property; (d) analogous rights to those set forth above; and (e) divisions, continuations, continuations-in-part, renewals, reissuances, and extensions of the foregoing (as applicable).

“Law” means any law, statute, regulation, rule, ordinance, administrative guidance, treaty or convention, or court or administrative order or ruling of any governing Federal, State, local or non-U.S. governmental body with jurisdiction over the Services.

“Master Services Agreement” shall mean a specific type of Service Contract entered into between Customer and Gabbit in circumstances where the Customer desires to consolidate Accounts and Services in the event the Customer has at least five (5) separate Service Locations.

“Receiving Party” means the Party or its agents, including, but not limited to its Affiliates, officers, directors, employees, and attorneys receiving Confidential Information.

“Service(s)” means all services provided under this Agreement and set forth in one or more Order(s) or a Service Contract. All Services are for domestic U.S., commercial, non-residential use only. Services are subject to availability.

“Service Addendum” means an instrument appended to and/or made a part of your Order or Service Contract (if applicable) containing additional terms for Services and/or Equipment.

“Service Contract” means a Master Services Agreement, Service Addendum or any other similar agreement or understanding between You and Gabbit that may be executed and delivered (either manually or via Electronic Signature) under certain circumstances.

“Service Order(s)” or “Order(s)” means an order (or orders) for Services describing the type and quantity of Services requested by Customer which is submitted by Customer and accepted by Gabbit in accordance with Section 2(a), below. The Service Order may be presented: (a) verbally or in writing, with such Order in each case communicated to a member of the Gabbit sales team (or other authorized representative); (b) via the Gabbit website; or (c) via the Administrative Portal.

“Service Start Date” means the date so identified in the relevant Order (whether an initial Order or subsequent Order) or Service Contract or such other date as the Services go live (or Gabbit is otherwise ready to go live) for a Customer.

“Taxes” means any and all federal, state, local, municipal, foreign, and other taxes and fees charged or collected from Customers, including but not limited to any Universal Service Fund, TRS and 911 taxes and fees.

“Term” has the meaning set forth in Section 2(a).

“Use Policy” or “Use Policies” refers to one, or all, of the policies identified in Section 6, below.

2. ORDERING; TERM OF SERVICE; EQUIPMENT

(a)          Ordering Services; Enrollment Data

Customer may request and order Services by submitting a Service Order. Upon receipt of the Service Order, Gabbit will generate and present to the Customer a written Telephone Service Quote (a “TSQ”).  The TSQ shall identify: (i) the Services requested by the Customer; (ii) the location or locations where the Services will be provided (each, a “Service Location”); (iii) the price for each Service; and (iv) any Purchased Equipment (defined below). The TSQ may also state a proposed Service Start Date. Once sent to the Customer, the TSQ shall be incorporated by reference into, and shall form a part of, the Service Order. Gabbit may accept an Order by either executing a Service Contract with the Customer or commencing performance of the requested Services. The Services will begin on the Service Start Date and will (subject to Section 2(c), below) continue for the term set forth in the Service Order or the Service Contract (as applicable) (the “Term”).

The Customer must activate all Services set forth in the Service Order. Gabbit shall have no liability whatsoever if the Customer does not activate such Services or if the Customer is not ready to otherwise receive Services when Gabbit is ready to activate such Services. Unless otherwise agreed to in writing by Gabbit, the Customer shall be required to activate all Services within thirty (30) days of the date of the Service Order or Service Contract (as applicable). The failure of Customer to activate any or all Services (or to authorize the same following the acceptance of an Order) as set forth herein shall not relieve Customer of its obligations under this Agreement and/or its Service Contract.

For each Service Location, Customer shall provide true, accurate, current, and complete business name, administrator name, authorized agent(s), billing address, shipping address, the addresses where the Services will primarily be used, 911 registered address for each applicable device, email address, contact phone number, credit card or other payment account information, and any other data which may be necessary to administer Customer’s Gabbit Account (collectively, “Enrollment Data”). If Customer provides Enrollment Data that is, or that Gabbit suspects to be, false, inaccurate, not current, incomplete, fraudulent, or otherwise unlawful, Gabbit has the right, in its sole discretion, to suspend or terminate the Services and refuse any and all current or future use of all Services to Customer, Customer’s business(es), affiliates and all users of the Account. At all times, Customer shall maintain as current, and shall promptly update, Enrollment Data as required hereunder.

(b)          Additional Services; Service Addendum

Customers may purchase additional Services and Equipment through submission of a new Service Order or as may otherwise be provided in a Service Contract. Any Service Addendum shall be incorporated into, and shall form a part of, the Service Contract and/or this Agreement.

(c)           Month-to Month Service; Fees

Unless: (i) the Customer has entered into a Service Contract; or (ii) if the Order states otherwise, the Term will begin on the Service Start Date and shall continue on a month-to-month basis until Customer shall give notice of non-renewal at least ten (10) business day prior to the end of the then-current billing period or unless terminated by Gabbit as provided herein. The Term of any recurring Services added to the Account after the initial Order is submitted will start on the Service Start Date of the subsequent Order, will run concurrently with the then-current monthly term of any pre-existing Services, and will be billed on the same billing cycle as the pre-existing Services. In no event shall the Customer be entitled to any refund, adjustment, or credit for any partial month upon any termination, cancellation, or modification of the Services hereunder. Notwithstanding anything herein to the contrary, Gabbit shall charge any Customer who has elected to receive Services on a month-to-month basis as set forth in this Section 2 (c) a monthly “MTM Option Fee” of seven percent (7%).

(d)           Equipment

(i)            Purchased Equipment. To use the Service, Customer may need, or may elect to purchase or lease, phones, headsets, or other equipment from Gabbit (collectively, “Purchased Equipment”). The Customer shall be responsible for the cost of all Purchased Equipment including but not limited to the payment of any and all sales tax thereon. Customer shall be required to pay for all Purchased Equipment “in full” in advance prior to the Billing Start Date or Service Start Date (as the case may be) unless otherwise agreed to by Gabbit in writing. Shipment of all Purchased Equipment is F.O.B. Gabbit’s shipping distributor facility. Gabbit’s liability for delivery shall cease, and title to such Purchased Equipment (if applicable) and all risk of loss or damage shall pass to Customer upon delivery to the shipping carrier. Customer acknowledges that Purchased Equipment (including but not limited to all telephones) shall be provisioned and programmed for use solely on the Gabbit Network. All Purchased Equipment is subject to the Equipment Return Policy, below. Notwithstanding anything to the contrary herein, “Purchased Equipment” shall include any Equipment provided to Customer at Gabbit’s expense (or that is offered to Customer at a discount) pursuant to the terms and conditions of a Service Contract.

(ii)           Return of Purchased Equipment; Equipment Return Fees.

(A)          Unless otherwise agreed to in writing, if the Customer cancels its Service within ninety (90) days from the Service Start Date, Customer may: (i) keep the Purchased Equipment and pay the list price less the actual price paid by Customer for the Purchased Equipment, excluding taxes; or (ii) return the Purchased Equipment and receive a full refund (less a twenty percent (20%) restocking fee). No returns are accepted after ninety (90) days from the Service Start Date. All Purchased Equipment that is returned pursuant to this Section must be fully functional, including all components, manuals, peripheral devices, and all other accessories that were originally shipped with the Purchased Equipment. At Gabbit’s discretion, we may decline the return or charge Customer a fee of Thirty Dollars ($30.00) for each missing item or for each item that Gabbit determines is damaged or not in good working condition, which shall be deemed to be part of the Equipment Return Fees (as provided below). Before returning any Purchased Equipment that has data in its memory, Customer shall transfer all data it wants to retain to another file source. Once the Purchased Equipment is returned, Customer files and data cannot be recovered. Customer does hereby release Gabbit from all liability or loss resulting from any lost, damaged, or destroyed files, data, or other information contained on Purchased Equipment that is returned.

(B)          Customer shall be responsible for all return shipping charges for any Purchased Equipment returned to Gabbit for any reason (including shipping and handling), including situations in which Purchased Equipment is covered under warranty. Customer understands and acknowledges that if Customer cancels the Services prior to the end of the Term or if Customer’s Account is terminated for any reason prior to the end of the Term, cancellation, or termination fees, and/or phone, hardware, and other equipment fees shall apply in accordance with the terms and conditions set forth herein or otherwise in the Order or Service Contract (collectively, “Equipment Return Fees”). Customer hereby authorizes Gabbit to charge Customer’s credit card, and Customer hereby agrees to be liable for, all Equipment Return Fees. The foregoing Customer obligations shall survive the termination of Service.

(C)          All amounts due and owing by Customer hereunder (including the Equipment Return Fees and the Re-Provision Fee (as defined below)) shall be deemed to be part of the Termination Fees (as defined in Section 10 (d), below).

(iii)          Gabbit Equipment. Gabbit Equipment is and shall remain the property of Gabbit regardless of where installed within the Service Location(s) and shall not be considered a fixture or an addition to the land or the Service Location(s). At any time Gabbit may remove or change Gabbit Equipment in its sole discretion in connection with providing the Services. Customer shall not move, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any Gabbit Equipment or permit others to do so, and shall not use the Gabbit Equipment for any purpose other than that authorized by this Agreement. Gabbit shall maintain Gabbit Equipment in good operating condition during the term of this Agreement; provided, however, that such maintenance shall be at Gabbit’s expense only to the extent that it is related to and/or resulting from the ordinary and proper use of the Gabbit Equipment. Customer is responsible for damage to, or loss of, Gabbit Equipment caused by Customer’s acts or omissions, and its noncompliance with this Section, or by fire, theft, or other casualty at the Service Location(s), unless caused by the negligence or willful misconduct of Gabbit. Customer agrees not to take any action that would directly or indirectly impair Gabbit’s title to the Gabbit Equipment, or expose Gabbit to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the Parties.

(iv)         Return of Gabbit Equipment. Upon termination or expiration of the Services, at the discretion and direction of Gabbit: (A) Customer shall return the Gabbit Equipment to Gabbit; (B) Customer shall allow Gabbit to retrieve the Gabbit Equipment, which Gabbit Equipment must be in the condition in which the Gabbit Equipment was originally received by Customer, subject to ordinary wear and tear; or (C) Gabbit may choose not to recover all or certain portions of the Gabbit Equipment at any Service Location. If, upon Gabbit’s request, Customer fails to return the Gabbit Equipment, or does not allow Gabbit to retrieve the Gabbit Equipment within fifteen (15) days after Services are terminated, Gabbit may, at its discretion charge Customer an amount equal to: (Y) Gabbit’s then-applicable unreturned equipment charge, or the retail cost of replacement of the unreturned Gabbit Equipment; plus (Z) any and all costs and expenses incurred by Gabbit in obtaining or attempting to regain possession of the Gabbit Equipment. If applicable, Customer shall pay for the repair or replacement of any damaged Gabbit Equipment, except such repairs or replacements as may be necessary due to normal and ordinary wear and tear or material or workmanship defects. The proper disposition of any Gabbit Equipment that is not returned to, or recovered by, Gabbit will be the sole responsibility of Customer, and must be in accordance with applicable laws. All amounts due and owing by Customer hereunder shall be deemed to be part of the Termination Fees (as defined in Section 10 (d), below). The foregoing Customer obligations shall survive the termination of Service.

(v)          Customer-Provided Equipment. Gabbit shall have no obligation to install, operate, support, repair, update, or maintain Customer-Provided Equipment. The Customer is responsible for the installation, repair, maintenance, and use of Customer-Provided Equipment. Any questions concerning Customer-Provided Equipment should be directed to the provider of that product. Gabbit assumes no liability or responsibility for the installation, maintenance, compatibility, or performance of any Customer-Provided Equipment or Customer-supplied software with the Services. Customer shall pay a fee of Twenty-Five Dollars ($25.00) per unit in order for Gabbit to provision any phone or other equipment for use in the Gabbit Network.

The Customer shall be solely responsible for providing maintenance, repair, operation, and replacement of all inside wiring and equipment and facilities on the Customer’s side of the cable modem, router and/or coaxial input connection (which shall all be considered Customer-Provided Equipment). All Customer-Provided Equipment that Customer uses in connection with the Services must be fully compatible with the Services. If, at the Customer’s request, Gabbit should attempt to resolve service-related difficulties caused by Customer-Provided Equipment or software, Customer shall be solely responsible for the payment of all charges for troubleshooting, maintenance, or repairs attempted or performed by Gabbit’s employees or authorized contractors in all such events (all such charges to be billed at Gabbit’s standard rates) regardless of whether or not Gabbit can resolve the issue. Gabbit shall not be responsible to the Customer if updates or changes to any of Gabbit’s facilities, operations, or procedures employed by Gabbit to provide the Services hereunder (including the Gabbit Network) render any Customer-Provided Equipment obsolete or requires modification or alteration of such equipment or system or otherwise affects its use or performance.

(vi)         Equipment License; Re-Provision Fee. Gabbit grants Customer a limited, revocable, non-transferrable, sublicensable only to its End Users, non-resalable license and right to use firmware or software embedded in the Gabbit Equipment and Purchased Equipment in object code form strictly in accordance with this Agreement. Gabbit does not grant any license to use the firmware in any other manner, and you expressly agree that the Gabbit Equipment and Purchased Equipment is exclusively for use in connection with the Services described in this Agreement. Gabbit shall charge a fee of Fifty Dollars ($50.00) per unit in order to re-provision any Customer-Provided Equipment and/or any Purchased Equipment for use by Customer on another network (the “Re-Provision Fee”), which Re-Provision Fee shall be paid by Customer in advance.

3.  BILLING AND PAYMENT

(a)          Prices and Charges

Customer will be liable for all charges resulting from use of the Services on its Account. All prices are identified in US dollars and shall be as stated on the Gabbit Website, in the Administrative Portal, or in the Customer’s Service Order. Additional charges may result if the Customer activates additional features, exceeds usage thresholds, or purchases additional Services or Equipment. Gabbit will provide notice of any proposed increase in such charges at least thirty (30) days prior to the effective date of such increase. Administrative Fees that Gabbit is entitled to pass on to Customers as a surcharge pursuant to applicable Law may be increased on thirty (30) days’ written notice. In the event Customer desires to purchase toll-free services and/or numbers, such services shall be billed at Gabbit’s standard rates unless otherwise agreed to pursuant to a Service Contract. Upon termination of the Services as provided herein, Customer shall remain responsible for all accrued and unpaid charges as set forth in Section 3(b)(iv), below.

(b)          Billing and Payment

(i)            Invoices. Except as otherwise indicated herein or in the Customer’s Service Contract, Gabbit invoices for monthly (or annual) recurring charges and fees specific to the Services (“MRCs”) in advance on a monthly (or annual) basis.  Gabbit invoices for non-recurring, one-time charges (“OTCs”) monthly in arrears. MRCs begin on the Billing Start Date (or such other date as may be set forth in a Service Contract) and will continue until the provision of Services hereunder has been terminated, cancelled, or upon expiration of the Term.

(ii)           Method of Payment. Unless otherwise agreed to by Gabbit in writing, all Services and Equipment must be purchased via valid credit or debit card, or electronic payment information supplied at the time of purchase. By providing a valid credit or debit card, the Customer is expressly authorizing all Services and Equipment charges and fees to be charged to such payment card, including MRC’s. In addition, the Customer’s supplied credit card shall be used for any in-month purchases of additional services and products. Gabbit may charge a reasonable service fee for all returned checks and bankcard, credit card or other chargebacks.

(iii)           Credit Card/Electronic Payment Policy. By providing Gabbit with a credit card/debit card number or electronic payment information, Customer authorizes Gabbit to charge the card or account for all charges generated under this Agreement, until: (A) this Agreement is terminated; or (B) Customer provides sixty (60) days prior notice that Gabbit stop charging the credit card or account. Automatic payments hereunder are subject to the approval of the card issuer or bank, and Gabbit will not be liable in any way if Gabbit is unable to process such payment, or if the issuer/bank refuses or rejects a payment for any reason. Customer is responsible for any chargeback or similar fees for refused or rejected payments that Gabbit is entitled to charge under this Agreement. If the payment card associated with Customer’s Account is declined or fails for any reason, Gabbit will send Customer a notice using the contact information associated with Customer’s Account. Gabbit may continue to attempt charging Customer’s payment card or account for outstanding charges and additional fees along with any other rights and remedies available to Gabbit under this Agreement, at law or in equity. Notwithstanding the foregoing: (Y) Gabbit may limit the option to pay by credit card to specific Services or may discontinue acceptance of credit card payments in whole or in part upon thirty (30) days prior notice to Customer; and (Z) Gabbit reserves the right to suspend or disconnect the Services and terminate Customer’s Account if any automatic charge or payment is declined or fails for any reason.

(iv)         Payment Terms.

(A)          An invoice for all Customer charges (including MRCs and OTCs) shall be sent monthly to the e-mail address specified in Customer’s Account and shall be deemed received on the date sent (each, an “Invoice”). Gabbit shall not be responsible for any Invoice that is not delivered as a result of any failure by Customer to maintain and provide accurate and updated Account information. Payment is due in full, without deduction or set-off, within thirty (30) days of the date on the Invoice (the “Invoice Due Date”). If full payment is not received within fifteen (15) days following the Invoice Due Date, Gabbit shall send a late payment notice to Customer (the “First Notice”) stating that payment is past due, and that service will be disconnected in ten (10) days (the “Disconnection Date”) unless payment is made in full. If payment in full is not received within five (5) days following receipt of the First Notice, Gabbit shall send a second notice to Customer (the “Second Notice”) stating that service shall be terminated unless payment in full is made prior to the Disconnection Date. If payment in full is not made on or before the Disconnection Date, Customer’s Service shall be immediately terminated in accordance with Section 10(c), below.

(B)          Time is of the essence for payment. Any payment not made on or before the Invoice Due Date shall be subject to a late fee equal to the greater of: (a) 2.5% (or the maximum rate permitted by law) of the outstanding unpaid balance per month from the date such payment is due until the date paid in full; or (b) $15.00 per month (the “Late Fee”). Gabbit’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’, or similarly)) will not waive, limit, or prejudice in any way Gabbit’s rights to collect any amount due. Gabbit has the right to terminate the Services and this Agreement if any fees or charges are not paid as set forth in (A), above or if Customer has otherwise been deemed by Gabbit to be a Collection Risk. If Gabbit terminates the Services, Customer shall remain liable to Gabbit for all charges due and unpaid hereunder. Notwithstanding Section 17, below, Gabbit may refer the delinquent account to a collection agency or attorney in order to pursue collection of the past due amount and/or any Equipment which Customer fails to return in accordance with this Agreement. Any Account which has been disconnected for non-payment as provided above shall be subject to a reconnect fee of $50.00 (the “Reconnect Fee”). Services will be restored only after all outstanding amounts (including any Late Fees and costs and expenses of collection, including attorneys’ fees) and the Reconnect Fee are paid in full. If Gabbit is required to use a collection agency or attorney to collect any amount owed by Customer or any unreturned Equipment, Customer agrees to pay all reasonable costs and expenses of collection or other action (including but not limited to attorneys’ fees). The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to Gabbit under this Agreement or at law or in equity. Billing cycle end dates may change from time to time.

(C)          If Gabbit fails to present an Invoice in a timely manner, such failure shall not constitute a waiver of the charges for the Services to which said Invoice relates, and Customer shall be responsible for and pay such Invoice upon receipt in accordance with these payment terms.

(v)         Credit Inquiry; Deposit. Notwithstanding anything herein to the contrary, initial and ongoing delivery of Services may be subject to credit approval. Customer authorizes Gabbit to verify Customer’s credit standing and to make inquiries and to receive information about Customer’s credit history from third parties at any time. Gabbit, in its sole discretion, may deny the Services based upon an unsatisfactory credit history. Subject to applicable regulations, if Customer has been deemed to be a Collection Risk, Gabbit may require Customer to make a deposit (in an amount determined by Gabbit in its sole discretion) as a condition to Gabbit’s provision of the Services or as a condition to Gabbit’s continuation of the Services. The deposit will not, unless explicitly required by law, bear interest and shall be held by Gabbit as security for payment of Customer’s charges. Gabbit may apply the deposit in its sole discretion to any delinquent Customer charges upon written notice to Customer.

(c)           Taxes

All rates, fees, and charges are exclusive of applicable Taxes, for which Customer is solely responsible. Taxes may vary based on jurisdiction and the Services provided. Taxes, access fees, universal service or other recovery fees, or similar charges will be adjusted on the date in which those increases become effective as mandated by competent authority. If any withholding tax is levied on the payments, then Customer must increase the sums paid to Gabbit so that the amount received by Gabbit after the withholding tax is deducted is the full amount Gabbit would have received if no withholding or deduction had been made.

(d)          Billing Disputes

If Customer reasonably and in good faith disputes any portion of an Invoice, it must submit a written claim to Gabbit on or before the Invoice Due Date. Such claim shall identify the reason for the dispute, the amount being disputed, and shall include all documentation substantiating Customer’s claim. Customer’s dispute as to any portion of an Invoice will not excuse Customer’s obligation to timely pay the undisputed portion of the Invoice. Upon resolution, the Customer must pay any unpaid amounts within thirty (30) days. Any amounts that are found to be in error resulting in an overpayment by the Customer will be applied as a billing credit against future charges. Customer will be reimbursed for any outstanding billing credits upon the expiration of the Term or termination of this Agreement (as applicable). Under no circumstances may Customer submit a billing dispute to Gabbit after the Invoice Due Date of the applicable invoice.

(e)          Fraudulent Use of Services

Customer is responsible for all charges attributable to Customer with respect to the Services, even if incurred as the result of fraudulent or unauthorized use of the Services. Gabbit may, but is not obligated to, detect, or report unauthorized or fraudulent use of Services to Customer. Gabbit reserves the right to restrict, suspend or discontinue providing any Service in the event of fraudulent (or suspected fraudulent) use by Customer.

4.  PROVISION OF THE SERVICES

(a)          General Terms

Gabbit will provide the Services as described in the relevant Service Order. Gabbit may enhance, replace, and/or change the features of the Services, but it will not materially reduce the core features, functions, or security of the Services during the Term without Customer’s consent. Subject to these Terms, the Services are intended for commercial use only.

(b)          Service Locations

Except as otherwise provided in these Terms, the Services may only be used at the Service Locations where such Service is installed by Gabbit. Customer understands and acknowledges that if Customer attempts to install or use the Gabbit Equipment or the Services at another location, the Services, including but not limited to 9l l/E911, may fail to function or may function improperly. It will be considered a breach of this Agreement if Customer moves the Services to another Service Location without first notifying Gabbit.

(c)           Customer Service

Gabbit provides customer and technical support to Customer via telephone (at 855-5-GABBIT) or via Gabbit’s customer service portal at support@gabbit.com. Any individual contacting Customer Support on behalf of Customer must be authorized to do so on behalf of the Account and will be required to follow Gabbit’s authentication protocol. Customer is responsible for all communications and support for its End Users. Customer shall provide routine operational support for the Equipment located at a Service Location, including without limitation, by performing reboots as requested by Gabbit. Gabbit will use reasonable efforts to troubleshoot and resolve issues reported by Customer but does not make any representations or guarantees that we will be able to fully resolve any such issues. Except as provided in this section, Gabbit has no obligation to provide additional customer support, technical support, or to provide solutions (e.g., bug fixes to software) to any issues that may arise as  a result of Customer’s particular use of the Services.

(d)          Customer Service Fees and Charges

Calls or inquiries to the Gabbit customer service center will incur a charge (based on Gabbit’s standard hourly service rates) for issues requiring more than ten (10) minutes of a technician’s time. Calls or inquiries to reprogram Customer’s phone system to repair a function where Customer or one of Customer’s employees, agents or representatives caused the issue will be immediately billable. If Gabbit or its representatives visit a Service Location to either inspect the Services or respond to a service request, and Gabbit determines that the cause of the service issue is not due to a problem arising from the Gabbit Network or Gabbit Equipment, but rather is due to Customer misuse, abuse, or modification of the Services, Customer Equipment or facilities, or due to similar acts by a third party not under Gabbit’s control or direction, then Gabbit may invoice Customer at Gabbit’s then-prevailing commercial rates for an on-site visit, plus any charges for Gabbit Equipment repair or replacement as a result of Customer or third-party damage that may be necessary.

Customer will not incur a charge for any customer service calls where it is determined that the issue originated from the Gabbit data center or centralized equipment.

(e)          Third-Party Hardware or Software

Gabbit does not support third-party hardware or software used in conjunction with third-party services or supplied by Customer including but not limited to Customer-Provided Equipment. Any questions concerning third-party hardware or software should be directed to the provider of that product.  Gabbit assumes no liability or responsibility for the installation, maintenance, compatibility or performance of third-party software, or any Customer Provided Equipment or Customer-supplied software with the Services.  If such third-party equipment or software impairs the Services, Customer shall continue to pay all applicable Service Charges.  If, at Customer’s request, Gabbit should attempt to resolve difficulties caused by such third-party equipment or software, such efforts shall be performed at Gabbit’s discretion and subject to applicable Service Charges as set forth herein.

(f)           Call Recording

Certain of the Services provide a function that allows the Customer to record and download individual telephone conversations. The initial default setting for call recording is “off.” This function is enabled (i.e. turned “on”) solely at the request of the Customer. The laws regarding the notice, notification, and consent requirements for recording conversations vary from state to state. In some states, Customer shall be required to obtain consent from all parties to record a conversation. Customer is solely responsible for complying with all federal, state, and local laws in any relevant jurisdiction when using the call recording feature. Gabbit expressly disclaims all liability with respect to Customer’s recording of telephone conversations. Customer hereby agrees to fully, finally, and forever release, discharge, hold harmless, and fully indemnify Gabbit and its members, employees, agents, and representatives from and against any fees, costs, damages, or liabilities of any kind related to the recording of any telephone conversations. Customer acknowledges and agrees that Gabbit may, in its sole discretion, record any call between Gabbit and Customer for quality control purposes.

If call recording functionality is enabled by the Customer as provided above, recordings are stored on Gabbit’s servers for thirty (30) days. Customers who have enabled call recording and require access to recordings should download and store such data locally. Except as required by applicable law, Gabbit and its suppliers reserve the right both during the Term and upon its termination or expiration to delete Customer Content and all related call detail, data, files, or other information that is stored on Gabbit’s or its suppliers’ servers or systems, in accordance with our storage policies. Customer understands and acknowledges that Gabbit shall have no liability whatsoever as a result of the loss or removal of any such Customer Content and all related call detail, data, files, or other information.

(g)          HIPAA

This Section 4(g) shall apply if Customer is a Covered Entity or Business Associate under HIPAA (defined below). If Customer is a Covered Entity or Business Associate, and intends to create, receive, maintain or transmit protected health information (“PHI”) through the use of the Services, Customer agrees that Gabbit is acting solely as a “conduit”. Under HIPAA, a “conduit” is a party that transports information but does not access it other than on a random or infrequent basis necessary for the performance of the Services or as required by law.

However, Customer agrees that it shall notify Gabbit, and the Parties shall enter into Gabbit’s Business Associate Agreement, if Customer is to receive or store any PHI on the voicemail or call recording features of the Services, both of which must occur before such receipt or storage of PHI. In such event, Customer further agrees that it shall not enable or otherwise use any “voicemail to email” feature in connection with the Services.  As used herein, “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing rules and regulations, and “Covered Entity,” “Business Associate,” and “protected health information” shall have their respective meanings as defined by HIPAA.

(h)          Customer Surveys

From time to time, Gabbit may send Customer surveys, comment cards, customer satisfaction forms, or other requests to provide feedback. Customer does hereby grant Gabbit, its licensors, and suppliers a perpetual, unlimited, worldwide fully paid-up, royalty free license to use all feedback, answers, ideas, comments, or other information that You provide to Gabbit as provided herein.

5.  NETWORK AND FACILITY REQUIREMENTS

Use of the Services is dependent upon Customer’s maintenance of sufficient Internet access, networks, and power as set forth below. Gabbit will not be responsible for any deficiencies in the provision or quality of the Services if Customer’s network does not meet Gabbit’s requirements.

(a)          High-Speed Network

The Services require a properly configured, high performance, enterprise-grade broadband IP network and connection. Use of the Services with any network, services, or connection not compatible with the Services may result in partial or complete unavailability, interruption, or underperformance of the Services or other services utilizing the same network, services, or connection. Likewise, 2G, 3G, or LTE networks are not recommended for use with the Services. Customer will provide and maintain, at its own cost, an IP network, services, and connection meeting the foregoing standard and all equipment necessary for the Services to connect to and use such network, services, and connection.

(b)          Customer Facilities

In the event that Customer-provided fiber, coax, copper wiring, and/or point-to-point wireless, or a segment of the foregoing provided by Customer (collectively “Customer Facilities”) are used in the delivery of Services, Customer shall at all times be solely responsible for the condition, performance, maintenance, repair, and replacement of such Customer Facilities. Upon request, Customer shall provide Gabbit with access to the Customer Facilities, for Gabbit to inspect the condition of Customer Facilities prior to the commencement of Service, provided that Gabbit shall not be required to conduct such inspection, and such inspection or statements made by Gabbit in connection therewith shall in no way constitute a representation, warranty or guarantee that the Customer Facilities are fit for use with the Service.  Notwithstanding anything in this Agreement to the contrary, Gabbit shall not be liable or responsible, nor shall it provide any credits, abatements, or discounts, for any Service delays, disruptions, degradations, repairs, maintenance, failures or any other Service issues caused by or resulting from Customer Facilities.

For the purposes of this Agreement, “Customer Facilities” shall also include any third party software (and upgrades to such) used by Customer in connection with its business (including but not limited to point-of-sale systems, CRM systems and other similar products) regardless of whether such system is in place upon commencement of the Services or is installed by Customer subsequent to such date.

Customer shall be solely responsible for satisfying all legal requirements for interconnecting Customer-provided terminal equipment or communications systems with other provider’s facilities, including, without limitation, application for all licenses, permits, rights-of-way, and other arrangements necessary for such interconnection.  Satisfaction of all legal requirements, any interface equipment or any other facilities necessary to interconnect the facilities of Gabbit and other providers must be provided at Customer’s sole expense.

(c)           Disruption of Service

Customer acknowledges and understands that the Services will not be available for use under certain circumstances, including without limitation when the network or facilities are not operating or if normal electrical power is interrupted and the Equipment does not have functioning backup power. Customer also understands and acknowledges that the performance of battery backup is not guaranteed. If the battery backup does not provide power, Services, including calls to 911, will not function until normal power is restored. Customer also understands that certain online features of the Services, where such features are available, will not be available under certain circumstances, including but not limited to the interruption of the Customer’s Internet connection.

(d)          Non-Voice Systems

Customer acknowledges that the Services are not set up to function with outdialing systems including home security systems, fire alarm systems, elevator communications, credit card processing machines, medical monitoring equipment, tty equipment, and entertainment or satellite television systems. Gabbit will not be liable for interruption or disruption of such systems by the Services and Customer waives any claim against Gabbit for interruption or disruption of such systems by the Services.

(e)          Voice-to-Text and Text-to-Voice

Customer acknowledges and agrees that: (i) any and all Voice/Text Features are provided merely as a convenience and may not accurately transcribe voice content, articulate text messages, or perform such functionality for all voice content or text messages or for the entirety of voice content or text messages; (ii) neither Customer nor any End User may rely on any Voice/Text Feature to perform such accurate transcription or articulation; and (iii) Customer and all End Users shall be responsible for reviewing and/or listening to the original content of any Customer Content or other media as necessary or appropriate to prevent Customer, any End User, or any other party from incurring any cost, expense, liability, loss, damage, or harm.

(f)           Network Upgrades

Gabbit has the right, but not the obligation, to upgrade, modify, and enhance the Gabbit Network and/or the Service and take any action that Gabbit deems appropriate to protect or improve the Service and its facilities.  Gabbit shall have the right, but not the obligation, to monitor, record, and maintain oral communications with Customer regarding Customer’s account or Services for the purpose of service quality assurance, or as permitted under applicable law.

6.  USE POLICY

Use of the Services is subject to and conditioned upon full compliance with the following policies and guidelines for acceptable, prohibited and unauthorized use. The Services (including any device, system, network, or account used in connection with the Services, or the Gabbit Network) may not be used in the following manner or for any of the following purposes (collectively, “Prohibited Uses” and each a “Prohibited Use”):

• Illegal activity. Violate any applicable law, including U.S. Federal, state, or local laws or regulations, or any applicable law or regulation of any foreign jurisdiction, including applicable laws regarding the recording of communications.
• Infringing activity. Infringe, misappropriate, or otherwise violate Gabbit’s (or anyone’s) rights (including Intellectual Property, privacy, personality, publicity, or otherwise); or display or use Gabbit’s Marks (as defined in Section 11 (d), below) without consent or in violation of Gabbit’s policies.
• Autodialing; trunking; traffic pumping. Perform autodialing or “predictive dialing” in an abusive manner; trunk or forward your Gabbit phone or fax number to other numbers that handle multiple simultaneous calls or to a private branch exchange (PBX) or a key system; traffic pumping or access stimulation of calls through the Services or the Gabbit Network.
• Minors. Exploit or harm minors (e.g., expose them to inappropriate content; ask for personally identifiable information without parental consent).
• Transmit viruses. Interfere, inhibit, compromise, or otherwise harm the Services or the Gabbit Network (regardless of intent or knowledge); transmit any material that contains viruses, time or logic bombs, Trojan horses, worms, malware, spyware, or any other programs that may be harmful or dangerous.
• Objectionable activity. Act in an indecent, offensive, obscene, threatening, harassing, defamatory, libelous, fraudulent, malicious, disruptive, tortious, or other objectionable manner or in any manner that is invasive of another’s privacy; or create a false caller ID identity (i.e., ID spoofing), forge addresses or headers, or otherwise mislead others about a sender’s identity or origin.
• Driving; safety. Use while driving or otherwise in an unsafe manner.
• Harvest information; spam; bulk messages. Harvest or collect information (including email addresses) about third parties or End Users without consent; send bulk communications or other content (including messages or advertisements) without the recipient’s consent.
• Excessive or unauthorized use. Use any device, system, network, account, plan, or the Services in an unauthorized manner or in excess of reasonable business use including without limitation: (a) allowing more than one user to use a single VoIP line; (b) using a single VoIP line in excess of what would be expected of a single user; or (c) allowing unauthorized access to the Administrative Portal (whether incidental, accidental, intentional, or otherwise).
• Circumvent compliance or security. Take advantage of, bypass, exploit, defeat, disable, or otherwise circumvent limitations of the Services, security mechanisms, or compliance with this Use Policy, the Terms and Conditions generally, or any Law. Customer shall 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.
• Interference.  Use the Services in any way that interferes with other customers’ and third parties’ use of the Services or use the Services in any manner which disrupts, prevents or restricts any other customer from using the Services. Customer shall not install any equipment, including without limitation, any antenna or signal amplification system, at a Service Location that interferes with the Services or the Gabbit Network.
• Interception. Intercept, capture, sniff, monitor, modify, emulate, decrypt, or redirect any communication or data for any purpose.
• Resell. Resell, assign, share, license, or re-distribute (whether for a fee or otherwise) access to the Gabbit Network, the Services or system capacity, or any part thereof, in any manner other than for Customer’s internal business, including without limitation, any use to provide Services for the benefit of, or on behalf of, any third party other than Customer or its End Users.

The list above is not exhaustive or exclusive.

To minimize unauthorized use, Customer should: (i) disable international calling for all Digital Lines, End Users, or Accounts for which such calling activity is not needed or not authorized; (ii) restrict international calling destinations to those that are needed and authorized; (iii) block inbound calls from any caller and area codes from which Customer does not wish to receive calls and block inbound calls with no caller identification if appropriate; (iv) disable attachment of facsimile image and voicemail audio files to message notification emails associated with Customer’s Account(s) and/or individual Digital Lines or extensions for which such functionality is not required and to the extent that such files may include sensitive or confidential content; and (v) maintain strict control over access to the Administrative Portal (including usage of suitable password protection under the circumstances).

As between the Parties, Customer is solely responsible for: (i) all use (whether or not authorized) of the Service by Customer, any End User or any unauthorized person or entity, which use shall be deemed Customer’s use for purposes of this Agreement; (ii) all content that is viewed, stored or transmitted via the Service, as applicable; and (iii) all third-party charges incurred for merchandise and services accessed via the Service, if any. FOR AVOIDANCE OF DOUBT, CUSTOMER AND GABBIT AGREE THAT ANY VIOLATION OF THIS SECTION 6 INCLUDING BUT NOT LIMITED TO THE FAILURE TO SATISFY THE COVENANTS SET FORTH IN THE PRECEDING SENTENCE SHALL CONSTITUTE A BREACH OF THIS AGREEMENT.

HIGH RISK USE PROHIBITED

THE SERVICES ARE NOT DESIGNED OR INTENDED FOR USE IN SITUATIONS REQUIRING FAIL-SAFE PERFORMANCE OR IN WHICH FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY OF THE SERVICES COULD LEAD TO PHYSICAL HARM, SEVERE PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR DAMAGE TO BUSINESS, PROPERTY OR THE ENVIRONMENT (TOGETHER, “HIGH RISK ACTIVITIES”). THESE HIGH-RISK ACTIVITIES MAY INCLUDE, WITHOUT LIMITATION, VITAL BUSINESS OR PERSONAL COMMUNICATIONS, OR ACTIVITIES WHERE ABSOLUTELY ACCURATE DATA OR INFORMATION IS REQUIRED. CUSTOMER SHALL NOT USE THE SERVICES FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT. CUSTOMER EXPRESSLY ASSUMES THE RISKS OF ANY DAMAGES RESULTING FROM USING THE SERVICES IN CONNECTION WITH HIGH-RISK ACTIVITIES. GABBIT SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH-RISK ACTIVITIES OR SERVICES.

Notwithstanding anything to the contrary in this Agreement, Gabbit may act immediately and without notice to suspend or limit the Services if Gabbit reasonably suspects fraudulent or illegal activity in the Customer’s Account, breach of the Use Policy, or use of the Services that could interfere with the functioning of the Gabbit Network, provided such suspension or limitation may only be to the extent reasonably necessary to protect against the applicable condition, activity, or use. Gabbit will promptly remove the suspension or limitation as soon as the condition, activity or use is resolved and mitigated in full to the satisfaction of Gabbit. If Customer anticipates legitimate but unusual activity on its Account, Customer should contact Gabbit Support in advance to avoid any Service disruption.

7.  FRAUDULENT ACTIVITY OR ERRONEOUS CHARGES

(a)          Reporting Suspicious Activity

If Customer suspects fraudulent activity or erroneous charges on its Gabbit Account, please contact customer support at 855-542-2248 or via email at support@gabbit.com. When Customer contacts customer support, please have the following information available: (1) Customer name, contact information, Account number or telephone number in question, and other security verification information that Gabbit may request; (2) the date that the Account in question was created; (3) the credit card account number used to open the Account; and (4) the total amount Customer suspects was fraudulently or erroneously charged to the Account. If Customer does not contact Gabbit within thirty (30) days after the suspected fraudulent activity or erroneous charges appear on Customer’s Account, Customer waives its right to object to or challenge such activity or charges. Furthermore, if Customer requests that its bank or credit card company perform a chargeback without first contacting Gabbit and Gabbit subsequently determines that the charges at issue are not erroneous, Gabbit reserves the right to terminate Customer’s Account immediately and take any available legal action.

(b)          Responsibility for Account Charges

Notwithstanding the above, Customer is responsible for all charges attributable to Customer with respect to the Services, even if incurred as the result of fraudulent or unauthorized use of the Services. Gabbit may, but is not obligated to, detect, or report unauthorized or fraudulent use of Services to Customer. Gabbit reserves the right to restrict, suspend, or discontinue providing any Service in the event of fraudulent use by Customer.

(c)           Fraud Prevention/Countries Not Served

In order to prevent international long distance fraud and reduce toll-fraud risks to Customers, Gabbit does not include direct dialing to the following countries for all Services: Comoros Island; Djibouti; Eritrea; Guinea; Guinea Bissau; Guyana; Ivory Coast; Liechtenstein; Maldives; Moldova; Niue Island; Sao Tome; Senegal; Sierra Leone; Somalia; Suriname; Tuvalu; Vanuatu; Yemen; Zimbabwe; Algeria; Morocco; Nauru; Papua New Guinea; Saint Helena; Soloman Islands; and Western Samoa. Customers may still make calls to the foregoing countries by making operator assisted calls, which may be subject to an additional fee.

8.  EMERGENCY SERVICES

Gabbit provides access to emergency calling services, allowing Gabbit Customers (with a subscription purchased as part of their Services) to access Enhanced 911 (“E911”) service. Gabbit users with a Digital Line can dial 911 directly from their IP Desk Phones. VIRTUAL EXTENSIONS, MOBILE USERS WITHOUT A DIGITAL LINE OR SOFTPHONE USERS ON PC’S CANNOT COMPLETE 911 CALLS. Customers who place 911 calls but who are not subscribed to Gabbit’s E911 service shall be charged an administrative fee of $300 per incident.

Emergency calling using Gabbit E911 services work differently than Customer may have experienced using traditional wireline or wireless telephones. Customer’s access may differ depending on Customer’s location or the device Customer is using.

(a)          Registering Your Location

Immediately upon activation of the Services, Customer must register with Gabbit the accurate address of the physical location where Customer will use each Digital Line. This is Customer’s “Registered Address”. Customer must use Gabbit Services only at the Registered Address provided for the applicable Digital Line.

MANY STATES REQUIRE BUSINESSES USING MULTI-LINE TELEPHONE SYSTEMS TO PROGRAM THEIR SYSTEMS TO TRANSMIT SPECIFIC LOCATION INFORMATION (E.G., OFFICE NUMBER, ROOM NUMBER, FLOOR LEVEL, OR DIRECTIONAL QUADRANTS WITHIN INDIVIDUAL BUILDINGS, OR STREET ADDRESS FOR MULTI-LINE SYSTEMS THAT SERVE MULTIPLE DISCRETE BUILDINGS) FOR E911 CALLS. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT IT, AND NOT GABBIT, BEARS SOLE RESPONSIBILITY TO ENSURE THAT IT IDENTIFIES AND COMPLIES WITH ALL SUCH APPLICABLE LAWS, AND ANY FAILURE TO DO SO IS A BREACH OF THIS AGREEMENT.

In order for E911 calls to be properly directed to emergency services, Gabbit must have Customer’s correct Registered Address. If Customer moves Services to a different Registered Address or a new location within a Registered Address without obtaining Gabbit’s approval and providing the correct information to Gabbit, any E911 calls made from the device may be sent to the wrong emergency response center and will not transmit Customer’s current location information to emergency responders, delaying emergency assistance. It may take up to several hours for the address update to take effect. Customers with more than one Digital Line are solely responsible for ensuring that an accurate and up-to-date Registered Address is maintained for each Digital Line, and that all End Users are aware of how the Registered Address can be changed.

(b)          Service Limitations

E911 service will not function: (i) in the event of an Internet or power outage; (ii) if Customer’s broadband, ISP, or Gabbit Service is terminated; or (iii) with respect to only the Gabbit Mobile Application, if Customer does not have mobile service, as the Gabbit Mobile Application cannot send E911 calls over Wi-Fi access. It is possible that network congestion may delay or prevent completion of any E911 call. You will not be able to complete an E911 call if you move to a physical location outside the country in which your Digital Line is provided, or if you are dialing from a Gabbit number that is not a United States number.

Customers uncomfortable with any of these limitations should use an alternate means of reaching 911.

(c)           How it Works

When you dial emergency services using E911, the Gabbit phone number and the Registered Address is sent to the local emergency center serving Customer’s location. In some areas, emergency operators have access to this information; however, in areas where only basic 911 service is available, the emergency operator answering the call may not have a system configured for E911 services or be able to capture and/or retain automatic number or location information, meaning the operator may not be able to see your Gabbit telephone number or your Registered Address. Customer should always be prepared to provide the emergency operator with their Gabbit telephone number and Registered Address in case the call is dropped or disconnected. If Customer (or the End User) is unable to speak, the emergency operator may not be able to send help and/or call Customer back should the call be disconnected. Gabbit does not control whether or not the emergency operator receives Customer’s telephone number and Registered Address.

In some cases, E911 calls dialed from Customer’s Gabbit device cannot be directed to the local emergency response center and are instead directed to a National Emergency Call Center (the “NECC”). This might occur if there is a problem validating a Registered Address, if the Registered Address is an international location, or if the Registered Address is in an area that is not covered by the landline 911 network. E911 calls that are directed to the NECC may not include Customer’s Gabbit telephone number or Registered Address. Trained operators at the NECC will request Customer’s name, location, and telephone number and attempt to reach emergency responders in Customer’s local area. Until Customer provides the operator with its phone number and location, the operator may not be able to call Customer back or dispatch help to Customer’s location if the call is dropped or disconnected.

(d)          Mobile Application

Calls to 911 placed through the Gabbit Mobile Application on a smartphone are automatically routed to the native dialer on the smartphone, and the call will be handled by your wireless service provider if wireless service is available. If your wireless service is unavailable, the 911 call cannot be placed. The Gabbit Mobile Application cannot place emergency calls over Wi-Fi access. Emergency dialing is not available through the Gabbit Mobile Application on tablets or other mobile devices without a native phone dialer and a wireless service plan.

In some areas, emergency operators are able to receive text messages sent to 911. Texts to 911 by Gabbit users relying on the Gabbit Mobile Application are automatically directed to the native dialer on the mobile phone, allowing you to send the text through your wireless service provider, if available. If wireless service is unavailable, the text cannot be sent. Text-to-911 is not available on tablets or other mobile devices without a native phone dialer and a wireless service subscription.

(e)          Notification of Employees, Guests, or Other Users

Customers must notify any employees, contractors, guests, or persons who may place calls using the Services or may be present at the physical location where the Services may be used, of the limitations of E911 Service or that it may be in some way limited in comparison to traditional 911 service. Customer must affix a Gabbit-provided label warning in a readily visible place on each piece of equipment that might be used to access or use the Services stating that E911 services may be limited or unavailable.

(f)           Customer-initiated 911 Testing

If Customer chooses to make test calls to 911, it agrees to obtain prior approval from the relevant state and or local emergency communications authority and assumes all responsibility for the placement of such calls including but not limited to any costs or charges associated therewith.

(g)          Suspension and Termination by Gabbit

Customer understands and acknowledges that Services, including E911, will be disabled if Customer’s account is suspended or terminated (except E911 shall remain operational in the event the Customer’s account is suspended due to non-payment).

(h)           Disclaimer of Liability for Emergency Call Response; Indemnification

Customer’s use, and use by its employees, guests and other third parties of E911 Services are subject to the limitations described herein. The availability of certain features, such as transmission of a Registered Address or Customer’s Gabbit telephone number, depends on whether local emergency response centers support those features, and other factors outside of Gabbit’s control. Gabbit relies on qualified third parties to assist us in routing E911 calls and text messages to local emergency response centers and to the NECC. Gabbit does not have control over local emergency response centers, the NECC, emergency responders, or other third parties. Gabbit disclaims all responsibility for the conduct of local emergency response centers, the NECC, third parties engaged by Customer to facilitate address updates, and all other third parties involved in the provision of emergency response services. To the extent permitted by applicable Law, Customer hereby releases, discharges, and holds harmless Gabbit (and its employees, members, managers, and officers) from and against any and all liability relating to or arising from any acts or omissions of such third parties or other third parties involved in the handling of or response to any emergency or E911 call.

Customer does hereby indemnify Gabbit against and hold Gabbit (and any third-party provider(s)) harmless from any and all claims, losses, damages, fines, penalties, costs and expenses (including but not limited to reasonable attorneys’ fees) arising out of: (i) the failure of Customer (itself or on behalf of End Users) to provide Gabbit with true and correct information, including physical addresses, or failure to update a Registered Address; (ii) Customer’s failure to properly notify any person who may place calls using the Services of the 911 limitations; (iii) the absence, failure, or outage of emergency service dialing for any reason; and (iv) the inability of any End User to be able to dial 911 or access emergency service personnel for any reason.

(i)          E911 Service Charge. Customers that subscribe to Gabbit E911 service will be subject to a monthly E911 service charge. The monthly E911 service charge shall be in addition to the applicable service fees for the associated line. The monthly charge for E911 service is assessed on a “per-line” (that is, per phone number) basis, and will be set at a level that reimburses Gabbit for the direct costs it incurs in providing E911 service, including expenses Gabbit incurs, either directly or indirectly, in the form of state, county or municipal E911 surcharges. Gabbit 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.

(j)           Other Calling Policies

The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900, or calling card calls). The Service may not support 311, 411, and/or other X11 dialing (other than 911) in one or more service areas.

9. NUMBERING AND PORTING POLICY

Customer may obtain new phone numbers from Gabbit for use with the Services, or may port its existing phone numbers, subject to the terms and conditions below.

(a)          Number Availability

Gabbit makes available phone numbers for use with voice and facsimile services, which Customer may select for assignment to the Customer’s Account. Gabbit’s listing of a number as available may be erroneous and does not constitute a representation or guarantee that such number is actually available for such assignment. In the event a chosen number is not actually available, Gabbit may remove such number from an Account. All vanity and/or specialty phone numbers obtained by Gabbit at the request of the Customer shall be billed at Gabbit’s standard rates and shall be considered to be an OTC.

(b)          Number Porting

(i)            Number Port-In Procedures. Customer must keep its existing service active in order to port a phone number to Gabbit. In order to request the porting of a telephone or facsimile number into an Account, the Account Administrator for the Account into which you wish the telephone or facsimile number to be ported must send the request to Gabbit at sales@gabbit.com or call customer service at 855-542-2248 and complete all steps and provide all information requested or required by Gabbit as part of the number port-in process (which may in some cases include providing an executed Letter of Authorization). Porting requests are processed between the hours of 9am – 5pm CST, Monday-Friday. After-hours porting requests will be processed the following business day, in accordance with standard industry practice.

(ii)           Port-In Authorization.  Upon acceptance hereof, you hereby appoint Gabbit as your authorized agent for ordering changes from your local carrier. Gabbit may deal directly with your carrier, or with any vendor, in all matters pertaining to your Account or the Services. You understand that only one local company may be designated for the telephone numbers that you provide to Gabbit. By your acceptance hereof, you represent that the Account Administrator has the authority to order changes in local service(s) on Customer’s behalf. Gabbit reserves the right to perform a customer credit profile and may deny service based on the results thereof.

 (iii)          Port Out Procedures. In order to port telephone or facsimile number(s) out to another service provider, Customer must follow the instructions and procedures specified by such service provider. In connection therewith, Customer must cooperate with, and provide all information to, any such new provider, Gabbit, or any other relevant third party. Failure to do so may result in delays in porting Customer’s number(s). Porting phone numbers out of an Account requires that the Customer provide specific and detailed information to Gabbit and/or other service providers. It is Customer’s responsibility to transmit port-out requests as far in advance as may be necessary to accommodate Customer’s own service schedule. Gabbit cannot (and does not) guarantee that any proposed timeline for porting out can be accommodated, as the process depends on factors beyond Gabbit’s control. Port out requests shall be sent to legal@gabbit.com and may only be made by an Account Administrator. Gabbit shall not be responsible for any delays caused by, or that may result from, policies and procedures imposed by Gabbit or any other service provider in order to comply with applicable law and industry standards (including, but not limited to, attempts by Gabbit to verify the validity and accuracy of any port-out request). Therefore, the completion of any number port request may depend on factors outside of Gabbit’s control, including delays caused by Customer and/or other service providers. Customer further understands and acknowledges that: (a) porting its number(s) away from Gabbit’s Service – which terminates the Customer’s Services – does not relieve the Customer of its responsibilities and obligations to pay all sums due and owing to Gabbit (including but not limited to the full satisfaction of all outstanding Invoices and Termination Fees (as defined in Section 10 (d), below); and (b) Customer shall be responsible for a port-out fee of $3.00 per telephone number, which shall be assessed on the Customer’s final invoice (the “Port-Out Fee”). The Port-Out Fee shall be deemed to be a Termination Fee (as defined in Section 10 (d), below). Valid port-out requests shall be processed during Gabbit’s normal business hours and in the order in which they are received.

(iv)         Unauthorized Port Outs. Gabbit is required by law to comply with any valid port request. Phone numbers may be ported out from an Account due to acts or omissions of third parties (lawful, unlawful, or otherwise), and it may be difficult or impossible for Gabbit to: (A) prevent such port-outs: (B) retrieve numbers ported out of an Account; or (C) port such numbers back into an Account. Gabbit has no responsibility or liability incurred as a result of any such port-outs. Number porting is done at the Customer’s sole risk. Under no circumstances shall Gabbit be liable for any damages, including, without limitation, loss of profits, associated with porting or not porting a number. Customer agrees to indemnify and hold Gabbit, its third-party vendors, employees, members, managers, and officers, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys’ fees and costs of litigation, incurred or suffered by such party relating to or arising out of any number port requested by Customer, including those arising from any slamming complaints.

(v)          Accurate Porting Information. Customer represents and warrants that all information provided in connection with any request to port in or port out numbers to or from the Gabbit Services (including without limitation any information or representations in any Letter of Authorization) by Customer or any party acting on its behalf or direction will be true, accurate, and up to date.

(vi)         Customer Compliance with Porting Laws. The porting of numbers is subject to telecommunications and other Laws and may be subject to third-party terms and conditions. Customer, and/or any party acting on Customer’s behalf, shall not: (i) violate any applicable Law or engage in any fraudulent or deceptive conduct in its port-related requests or activities; (ii) engage in or facilitate “slamming” or the porting out of any telephone or facsimile number or change or attempt to change any party’s telephone service provider without first obtaining the proper, requisite consents and authorizations; or (iii) violate contractual or other obligations to service providers or other third parties.

(vii)        Release of Numbers. In the event of Account termination or cancellation, all telephone numbers associated with the Account which have not been ported to another provider may be released back into Gabbit’s general inventory. The cancellation of individual Digital Lines may result in the release of the associated numbers if those numbers have not been ported to another provider. Customer is solely responsible for working with its new provider to port out any and all numbers it desires to keep prior to termination or cancellation of Customer’s Account or Services, or any individual line.

(c)           Number Publication by Customer

All new number assignments are provisional until verified by Gabbit and confirmed by Customer. Gabbit cannot guarantee that requested telephone numbers will be available, that Customer’s existing provider will port such number, or that circumstances beyond Gabbit’s control will not prevent or delay a successful port of Customer’s number for the Services. Customer should not order any printed material, such as business cards or stationery, showing a telephone number, or issue any press releases or otherwise publicize any telephone number until Customer has confirmed that such number(s) is(are) active and functioning as desired. Acceptable methods of confirmation include test calling such number(s) from a non-Gabbit service plan and verifying that the fees and charges that will be incurred in connection with use of such number(s) are acceptable to Customer. Gabbit shall not be liable for reimbursement for press releases, business cards, stationery, or any other such materials under any circumstances.

(d)          Change of Numbers.

Gabbit may from time to time need to change the telephone or facsimile number assigned to Customer (due to an area code split or for any other reason beyond Gabbit’s control). Gabbit shall not be liable for any damages (including consequential, special damages or other damages) to Customer in the event that Gabbit needs to assign Customer a new telephone or facsimile number.

10.  TERMINATION

(a)          Monthly Plan Customers. Month-to-month Customers may cancel or terminate the Services at any time by calling customer service at 855-542-2248 or sending written notice to legal@gabbit.com, subject to the restrictions and fees provided in this Agreement (including but not limited to the payment of all outstanding amounts due for Services through the date of cancellation or termination) and any additional agreements governing the Services. Such cancellation or termination will be ineffective, and Gabbit shall continue to invoice Customer, to the extent Customer continues to use the Services.

(b)          Other Customers. If Customer is party to a Service Contract with Gabbit, any terms and conditions set forth in such agreement regarding cancellation or termination of Services shall govern in conjunction with these Terms.

(c)           Termination by Gabbit. Notwithstanding anything set forth herein or in any Service Contract to the contrary, Gabbit may in its sole discretion and without additional notice to Customer, terminate, modify, suspend, disconnect, discontinue, or block access to some or all of the features of the Services upon the occurrence of any of the following:

(i)            A breach (or threatened breach) of any representation, warranty, obligation, or covenant in this Agreement including but not limited to any conduct that constitutes a Prohibited Use;

(ii)           Non-payment as set forth in Section 3 (b)(iii), above, or if Customer is deemed by Gabbit in its sole discretion to be a Collection Risk;

(iii)          Creation of multiple free accounts;

(iv)         Use of a fraudulent credit card to pay for Service charges on Customer’s Account or providing false payment account information;

(v)         Verbal (or written) insults, abuse, or harassment, or use of vulgar or inappropriate language toward, any Gabbit employee, contractor, agent, or other representative;

(vi)          Failure to respond to Gabbit’s calls or email attempts to contact Customer about Customer’s Account (or any other reason related to the Services);

(vii)         Failure to comply or cooperate with any applicable Law or Customer otherwise fails or refuses to use the Services in compliance with applicable Law;

(viii)        Gabbit is ordered by law enforcement or other government agencies to suspend or terminate Service to Customer’s Account;

(ix)       Customer brings any legal action or proceeding, including without limitation in any court, regulatory, or administrative body, arbitral body, or mediator, against Gabbit or if Customer participates in any class action lawsuit against Gabbit;

(x)         Customer makes any disparaging statement (whether written, oral, electronic, or otherwise) against Gabbit, its Services, or its employees, contractors, agents, investors, affiliates, or other representatives;

(xi)          To the extent permitted by law, upon the commencement by or against Customer of insolvency, receivership or bankruptcy proceedings or any other proceedings or an assignment for the benefit of creditors; or

(xii)         Gabbit determines in its sole discretion that such action is necessary to: (A) protect, maintain, or improve the Services; (B) to prevent fraud or misrepresentation by affirmative acts and/or omissions; or (C) to protect the reputation and/or business prospects of Gabbit, its customers, or other third parties affiliated with Gabbit.

(d)          Effect of Termination

(i)           If this Agreement or any Services are terminated for any reason other than as set forth in Section (c) (viii) the Customer shall, to the extent permitted by applicable Law and without limiting any other right or remedy of Gabbit, immediately pay all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services for the remainder of the then-current Term (the “Early Termination Fee”) plus all other related Taxes and fees (including, but not limited to, the Late Fee, Equipment Return Fees and Port-Out Fees) (together, the “Termination Fees”).  In the event that the Services and/or Equipment being provided to Customer are subject to any discounts, reductions, credits, and concessions (collectively, the “Customer Discounts”), all Customer Discounts shall be forfeited upon termination and any Termination Fees due hereunder shall be adjusted and calculated based on Gabbit’s then-current prices and costs of Services and Equipment.  Customer shall not be entitled to any refund of any pre-paid amounts, calling credits, or other amounts paid to Gabbit prior to the termination or suspension date.

(ii)           Upon any termination or suspension of Customer’s Account, Gabbit may immediately: (A) disconnect the applicable Service; (B) delete or deactivate all Customer Content including but not limited to applicable data, files, electronic messages, voicemail, or other information stored on Gabbit’s servers or systems and/or restrict any further access to such files, information, or the Services; and (C) assess and collect from Customer all applicable Termination Fees. Gabbit is not able to recover a Customer Content once it has been deleted.

(iii)          Gabbit shall not be liable to Customer or any third party for any reason for: (A) terminating or suspending Customer’s use of, or access to, the Services as provided herein; and (B) taking any of the actions prescribed above in this Section 10 (d).

11.  END USER LICENSE AND RESTRICTIONS; INTELLECTUAL PROPERTY

(a)          Grant of Limited License.  Subject to, and conditional upon Customer’s compliance with, the terms of this Agreement, Gabbit grants to Customer and its End Users, a limited, personal, revocable, non-exclusive, non-transferable (other than as permitted under this Agreement), non-sublicensable and non-resalable license to use any software provided or made available by Gabbit to the Customer as part of the Services (the “Gabbit Software”) only to the extent reasonably required to use the Services as permitted by this Agreement (the “License”). The License shall remain in effect only for the duration of time that Customer is entitled to use the Services and shall be further subject to the Customer being current on its payment obligations. All rights not expressly granted under this Agreement are retained by Gabbit. Customer may not claim title to, or an ownership interest in, any Gabbit Software (or any derivations or improvements thereto) and Customer shall execute any documentation reasonably required by Gabbit, including, without limitation, end-user license agreements for the Gabbit Software. Gabbit and its suppliers shall retain ownership of the Gabbit Software, and no rights are granted to Customer other than a license to use the Gabbit Software under the terms expressly set forth in this Agreement.

(b)          License Restrictions. Customer will not, and will not allow its End Users, to:

(i)            sublicense, resell, lease, distribute, or assign its rights under the License granted under this Agreement to any other person or entity;

(ii)           copy, modify, adapt or create derivative works of the Gabbit Software or any associated documentation;

(iii)          reverse engineer, decompile, decrypt, disassemble, hack or otherwise attempt to derive the source code for the Gabbit Software or any parts thereof;

(iv)         use the Gabbit Software for infringement analysis, benchmarking, or for any purpose other than as may be necessary to use the Services that the Customer is authorized to use;

(v)          create, write, or develop any competing software or Services; or

(vi)         remove any copyright or other proprietary or confidential notices on any Gabbit Software or Services.

(c)           Intellectual Property Rights.

                (i)            Gabbit IP Rights. Title and IP rights to the Services are owned by Gabbit, its agents, suppliers or Affiliates or their licensors or otherwise by the owners of such material. The copying, redistribution, reselling, bundling or publication of the Services, in whole or in part, without express prior written consent from Gabbit or other owner of such material, is prohibited. Except as expressly provided in this Agreement, the License granted to Customer under Section 11 (a), above does not convey any ownership or other rights or licenses, express or implied, in the Services, any related materials, or in any Intellectual Property. No IP Rights or other rights or licenses are granted, transferred, or assigned to Customer, any End User, or any other party by implication, estoppel, or otherwise. All rights not expressly granted herein are reserved and retained by Gabbit and its licensors. The Software and Services may comprise or incorporate services, software, technology or products developed or provided by third parties, including open-source software or code. Customer acknowledges that misuse of Gabbit Services may violate third-party IP Rights. Customer will not take any action to jeopardize, limit, or interfere with the IP Rights of Gabbit or any other party. Any unauthorized use of the IP Rights is a violation of this Agreement, as well as a violation of applicable intellectual property laws. All title and rights in and to any third-party content that may be accessed through the Application or Services is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.

                (ii)           No Grant of Rights; No Resale. Customer shall not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Application or Services or any part thereof without Gabbit’s prior written consent. If Customer is interested in reselling products or services offered by Gabbit, Customer is encouraged to join the Gabbit affiliate network.

                (iii)       Gabbit Materials.    All Gabbit Materials shall remain the sole and exclusive property of Gabbit or its suppliers and shall not become a fixture to the Service Location. Customer shall acquire no title to, interest or right (including intellectual property rights) in the Gabbit Materials by virtue of the payments provided for herein other than the License as provided above. Customer agrees to maintain in confidence, and not to disclose to third parties or use, except for such use as is expressly permitted herein, the Gabbit Materials and any other information and materials provided by Gabbit in connection with this Agreement, including but not limited to the contents of this Agreement, any Service Contract, and any Order.  Customer may not issue a press release, public announcement, or other public statements regarding this Agreement without Gabbit’s prior written consent.

(iv)         Customer IP Rights. As between Gabbit and Customer, Customer retains title to all IP Rights that are owned by the Customer or its suppliers. To the extent reasonably required or desirable for the provision of the Services, Customer grants to Gabbit a limited, personal, non-exclusive, royalty-free, license to use Customer’s IP Rights in the same. Customer must provide (and is solely responsible for providing) all required notices and obtaining all licenses, consents, authorizations, or other approvals related to the use, reproduction, transmission, or receipt of any Customer Content that includes personal or Confidential Information or incorporates any third-party IP Rights.

(iv)         Copyright Infringement. Materials may be made available via the Service by third parties not within our control. We are under no obligation to, and do not, review content transmitted, sent, or received using the App or Services for purposes of determining copyright infringement. However, Gabbit reserves the right to terminate access to the Services if a user infringes on others’ copyrights, and will, in appropriate circumstances, terminate access to the Services if Gabbit determines that a user is a repeat infringer.

(d)          Use of Marks.  Neither Party may use or display the other Party’s trademarks, service marks or logos (together, the “Marks”) in any manner without such other Party’s prior written consent.

(e)          Resale. Customer may not sell, resell, transfer, convey, white label, wholesale or in any way distribute the Services to or for the benefit of any third party without express prior written consent of Gabbit (which consent may be withheld in Gabbit’s sole discretion).

(f)           Modification of Software by Gabbit. Gabbit may from time-to-time push software updates and patches directly to Customer’s device(s) for installation and Customer will not prevent Gabbit from doing so. Customer must implement promptly all fixes, updates, upgrades and replacements of software and third-party software that may be provided by Gabbit. Gabbit will not be liable for the inoperability or malfunction of the Services due to the failure of Customer to timely implement the required changes. Further, Gabbit, in its sole discretion, reserves the right to add, remove, or modify existing features or functions to the Services and App. However, Gabbit has no obligation to make available to Customer any subsequent versions of the Services and App. Customer may have to enter into a renewed version of this Agreement in order to download, install, or use a new version of the Software.

(g)          Ownership of Telephone Numbers and Addresses. Customer acknowledges that use of the Services does not give it any ownership or other rights in any telephone number or Internet/on-line addresses provided, including but not limited to Internet Protocol (“IP”) addresses, e-mail addresses and web addresses (unless purchased from Gabbit and/or previously owned by Customer and ported into Customer’s Account).

12.  CONFIDENTIALITY

The Receiving Party shall hold the Disclosing Party’s Confidential Information in confidence, shall use such Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall use at least as great a standard of care in protecting the Confidential Information as it uses to protect its own Confidential Information.

Each Party may disclose Confidential Information only to those of its employees, agents or subcontractors who have a need to it in order to perform or exercise such Party’s rights or obligations under this Agreement and who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. Each Party may disclose the other Party’s Confidential Information in any legal proceeding or to a governmental entity as required by Law.

These restrictions on the use or disclosure of Confidential Information do not apply to any information: (a) which is independently developed by the Receiving Party or is lawfully received free of restriction from another source having the right to so furnish such information; (b) after it has become generally available to the public without breach of this Agreement by the Receiving Party; (c) which at the time of disclosure was already known to the Receiving Party, without restriction as evidenced by documentation in such Party’s possession; or (d) which the Disclosing Party confirms in writing is free of such restrictions.

The Parties acknowledge and agree the restrictions and covenants set forth in this Agreement are reasonable and necessary for the protection of the business, goodwill, and future health of each such Party and it is the intent of the Parties that if, in the opinion of any court of competent jurisdiction, any provision set forth in this Agreement is not reasonable in any respect, such court shall have the right, power, and authority to modify any and all such provisions as to such court shall appear not unreasonable and to enforce the remainder of any such Sections as so modified. The Parties further agree that a Disclosing Party hereunder may be irreparably injured by a breach or threatened breach of this Section 12 and that the Disclosing Party may be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court to prevent breaches or threatened breaches of this Section 12 and to enforce specifically the terms and provisions hereof in any action instituted in any court having jurisdiction, in addition to any other remedy to which the Disclosing Party may be entitled at law or in equity in the event of any breach of the provisions hereof. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Section 12 but shall be in addition to all other remedies available at law or in equity.

Upon termination of this Agreement, the Receiving Party will promptly delete, destroy or, at the Disclosing Party’s request, return to the Disclosing Party, all Disclosing Party’s Confidential Information in its possession, including deleting or rendering unusable all electronic files and data that contain Confidential Information, and upon request will provide the Disclosing Party with certification of compliance with this subsection.

13.  DATA PROTECTION

                (a)          Data Privacy. Gabbit respects Customer’s privacy and will only use the information provided by Customer to Gabbit or collected in the provision of the Services in accordance with Gabbit’s Privacy Policy available at https://gabbit.com/privacy-policy, which is incorporated herein by reference. Gabbit may update the Privacy Policy from time to time and will provide notice of any material updates to the Customer as required by applicable Laws at the email address on file with the Account.

                (b)          Data Security. The Services use the public internet, third-party networks, and inside wiring in customers’ premises to transmit communications. Gabbit will take commercially reasonable precautions, including, without limitation, technical (e.g., firewalls and data encryption), administrative and physical measures, to help safeguard Customer’s Account, Account Data, and Customer Content against unauthorized use, disclosure, or modification. Customer acknowledges, however, that Gabbit cannot guarantee that Customer’s communications are completely secure. Customer must protect all End Points using industry-standard security measures. Customer is solely responsible to keep all user identifications and passwords secure. Customer must monitor use of the Services for possible unlawful or fraudulent use. Customer must notify Gabbit immediately if Customer becomes aware or has reason to believe that the Services are being used fraudulently or without authorization by any End User or third party. Failure to notify Gabbit may result in the suspension or termination of the Services and additional charges to Customer resulting from such use. Gabbit will not be liable for any charges resulting from unauthorized use of Customer’s Account.

14.  LIMITATION OF LIABILITY

(a)          Excluded Damages

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL GABBIT OR ITS AFFILIATES BE LIABLE FOR: (I) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, REPUTATIONAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND; (II) COSTS OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (III) LOSS OF USE, LOSS OR CORRUPTION OF DATA; OR (IV) LOSS OF BUSINESS OPPORTUNITIES, PROFITS, GOODWILL, OR SAVINGS, WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. NEITHER PARTY WILL BE LIABLE FOR ACTIONS REASONABLY TAKEN TO COMPLY WITH LAW.

NOTHING HEREIN IS INTENDED TO LIMIT CUSTOMER’S LIABILITY FOR AMOUNTS OWED FOR THE SERVICES, FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY GABBIT OR FOR EARLY TERMINATION CHARGES INCLUDING BUT NOT LIMITED TO THE TERMINATION FEES.

(b)          Direct Damages

GABBIT’S TOTAL LIABILITY FOR ANY AND ALL DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED AND CAPPED IN THEIR ENTIRETY TO THE MONTHLY FEES GABBIT CHARGED CUSTOMER DURING THE ONE (1) MONTH IMMEDIATELY PRIOR TO THE DATE THAT THE EVENTS GIVING RISE TO THE ACTION OR CLAIM FIRST OCCURRED. THIS LIMITATION OF LIABILITY REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY IN ANY AND ALL CIRCUMSTANCES EXCEPT THE LIMITATIONS UNDER THIS SECTION 14 (B) WILL NOT APPLY TO: (I) CUSTOMER PAYMENT OBLIGATIONS; (II) LIABILITY FOR INFRINGEMENT OF GABBIT’S IP RIGHTS; (III) LIABILITY RESULTING FROM GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR CRIMINAL MISCONDUCT; OR (IV) CUSTOMER’S LIABILITY RESULTING FROM USE OF THE SERVICES IN BREACH OF THIS AGREEMENT, THE ACCEPTABLE USE POLICY OR EMERGENCY SERVICES POLICY.

NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED, OR EXCLUDED PURSUANT TO APPLICABLE LAW.

(c)           Survival

The limitations of liability contained in this Section 14 will survive termination or expiration of this Agreement and apply in any and all circumstances (except as expressly set forth above), including without limitation in the event of any failure of the essential purpose of any limited warranty or available remedy provided herein.

15.  INDEMNIFICATION

(a)          Indemnification Obligations.  Customer agrees to indemnify and defend Gabbit and its Affiliates at Customer’s expense, from and against any and all liability, claims, losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys’ fees and dispute resolution expenses) arising from, related to or in connection with: (i) material violation of applicable Law by the Customer or its End Users in connection with the use of the Services; (ii) use of the Services in a manner not authorized by this Agreement; (iii) failure to promptly install any updates of any software or firmware or accept or use modified or replacement items provided by or on behalf of Gabbit; (iv) claims relating to Customer Content; or (v) any reckless or negligent acts or omissions or other willful misconduct by Customer or any third party acting with Customer’s permission, knowledge, authority or direction. Further, Customer will indemnify and hold harmless Gabbit against all damages, costs, and legal fees finally awarded against Gabbit by a court of competent jurisdiction in connection with such third-party claim or agreed to in a written settlement agreement approved in writing by the Customer.

(b)          Defense and Indemnification Procedures. Any Party seeking defense or indemnification (the “Indemnified Party”) must provide the Party from which it seeks such indemnification or defense (the “Indemnifying Party”) with the following: (i) prompt written notice of the third-party claim; (ii) sole control over the defense and settlement of the third-party claim; and (iii) reasonable information, cooperation, and assistance in connection with the defense and settlement of the third-party claim. The Indemnified Party’s failure to comply with the foregoing obligations will not relieve the Indemnifying Party of its defense or indemnification obligations under this Section (Indemnification), except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party will have the right to participate at its own expense in the defense of such third-party claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Party’s express written consent (which such consent may not be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Party by each party bringing such third-party claim.

16.  WARRANTIES

(a)          Gabbit General Warranty. Gabbit will provide the Services using a commercially reasonable level of skill and care, in material compliance with all applicable Laws and otherwise subject to the terms of this Agreement. To the extent permitted by Law, Gabbit shall pass through to Customer any and all warranties Gabbit receives in connection with Purchased Equipment.

(b)          Disclaimer of Certain Warranties

EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND GABBIT MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. TO THE EXTENT THAT GABBIT CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

GABBIT MAKES NO WARRANTY ON UP-TIME, RESPONSE TIMES, LATENCY, MEAN-TIME BETWEEN FAILURES, QUALITY OF SERVICE, AND/OR QUALITY OF VOICE OR FAX COMMUNICATIONS. GABBIT EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SERVICES ARE APPROPRIATE FOR HIGH-RISK OR OTHER ACTIVITIES WHERE FAILURE OF THE SERVICE COULD RESULT IN SERIOUS HARM TO PERSONS OR PROPERTY.

GABBIT MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. GABBIT IS NOT RESPONSIBLE FOR MESSAGES OR INFORMATION LOST OR MISDIRECTED DUE TO INTERRUPTIONS OR FLUCTUATIONS IN THE SERVICES OR THE INTERNET IN GENERAL. GABBIT IS NOT RESPONSIBLE FOR THE CONTENT OR FUNCTIONALITY OF ANY THIRD-PARTY NETWORK USED IN CONNECTION WITH THE SERVICES.

IN NO EVENT SHALL GABBIT, OR ITS AFFILIATES, SUPPLIERS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO: (i) STORED, TRANSMITTED, OR RECORDED DATA, FILES, OR SOFTWARE; (ii) ANY ACT OR OMISSION OF CUSTOMER, ITS END USERS OR THIRD PARTIES; (iii) INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; OR (iv) LOSS OR DESTRUCTION OF ANY CUSTOMER HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.

17.  DISPUTE RESOLUTION

(a)          Good Faith Attempt to Settle Disputes. In the event of any dispute or claim arising out of or relating to the Services or this Agreement (a “Dispute”), each Party will appoint a duly authorized representative which will confer with the other Party before either Party brings any further action hereunder, to make a reasonable and good faith effort to settle or otherwise resolve such Dispute. As used herein, “Dispute” shall include the determination of the validity, enforceability, scope or applicability of this Agreement to mediate or arbitrate.

CUSTOMER MUST CONTACT GABBIT WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE (EXCEPT FOR BILLING DISPUTES, ABOUT WHICH CUSTOMER MUST CONTACT GABBIT ON OR BEFORE THE INVOICE DUE DATE AS PROVIDED IN SECTION 3 (D) OF THIS AGREEMENT), OR CUSTOMER WAIVES THE RIGHT TO PURSUE ANY CLAIM BASED UPON ANY SUCH DISPUTE.

(b)          Mediation. If the Parties are unable to resolve the Dispute in accordance with Section 17 (a) within thirty (30) days, the Parties shall submit the Dispute to third-party non-binding mediation with the American Arbitration Association (the “AAA”). The Parties covenant that they will participate in the mediation, and that they will share equally in its costs (other than each Party’s individual attorneys’ fees and costs related to the Party’s participation in the mediation, which fees and costs will be borne by such Party). All offers, promises, conduct and statements, whether oral or written, made in connection with or during the mediation by either of the Parties, their agents, representatives, employees, experts and attorneys, and by the mediator or any of the mediator’s agents, representatives and employees, will not be subject to discovery and will be confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding between or involving the Parties, or either of them; provided, however, that evidence that is otherwise admissible or discoverable will not be rendered inadmissible or non-discoverable as a result of its use in the mediation.

(c)           Arbitration. For any Dispute involving Ten Thousand Dollars ($10,000) or more, if the Parties are unable to resolve the Dispute through mediation, Gabbit or Customer may elect to arbitrate such Dispute in accordance with the terms of this arbitration provision (“Arbitration Provision”) rather than litigate the Dispute in court. Such arbitration shall be conducted through, and in accordance with, the rules and procedures of the AAA, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision shall be final and legally binding.

ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER CUSTOMERS, OR OTHER PERSONS.

(d)          Venue.  To the extent any proceeding is initiated hereunder (including but not limited to court action to enforce an arbitration award or for any other reason consistent with this Section 17), any such action, lawsuit, or proceeding must be brought in the city and county of St. Louis, Missouri, United States of America (unless otherwise agreed to by the Parties) and, if applicable and except to the extent provided above in this Section 17, adjudicated exclusively by the state or Federal courts located in the city and county of St. Louis, Missouri, United States of America. Each Party hereby consents to and agrees to submit to the exclusive venue and personal jurisdiction of such courts with respect to any such action, lawsuit or proceeding and irrevocably waives any right that it might have to assert that either forum is not convenient or that any such courts lack jurisdiction.

(e)          Equitable Relief. Nothing in this Section 17 shall be deemed as preventing a Party from seeking injunctive or other equitable relief from the courts as necessary: (i) to protect any of its IP Rights; (ii) to enforce its rights under Section 12, above; or (iii) as a result of any Dispute related to or arising from allegations associated with unauthorized use or receipt of service. Any breach of either Party’s IP Rights will cause that Party irreparable harm for which monetary damages will be inadequate and such Party may, in addition to other remedies available at Law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement, in additional to any other relief to which such Party may be entitled under applicable Law.

(f)           Waiver. In the event this entire Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Arbitration Provision, Customer and Gabbit have each agreed to waive, to the fullest extent allowed by law, any trial by jury.

(g)          Right to Opt-Out. IF CUSTOMER DOES NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION CUSTOMER MUST NOTIFY GABBIT IN WRITING WITHIN THIRTY (30) DAYS OF THE SERVICE START DATE BY EMAIL TO LEGAL@GABBIT.COM OR BY MAIL TO GABBIT, 9415 DIELMAN ROCK ISLAND INDUSTRIAL DRIVE, ST. LOUIS, MO 63132, ATTN: LEGAL DEPARTMENT. YOUR WRITTEN NOTIFICATION TO GABBIT MUST INCLUDE THE CUSTOMER’S NAME, ADDRESS AND GABBIT ACCOUNT NUMBER, THE NAME AND POSITION OF THE PERSON SUBMITTING THE NOTIFICATION ON BEHALF OF THE CUSTOMER, AS WELL AS A CLEAR STATEMENT THAT CUSTOMER DOES NOT WISH TO RESOLVE DISPUTES WITH GABBIT THROUGH ARBITRATION. CUSTOMER’S DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON CUSTOMER’S RELATIONSHIP WITH GABBIT OR THE DELIVERY OF SERVICES TO CUSTOMER BY GABBIT. IF CUSTOMER HAS PREVIOUSLY NOTIFIED GABBIT OF ITS DECISION TO OPT OUT OF ARBITRATION, CUSTOMER NEED NOT PROVIDE NOTICE AGAIN.

18.  MISCELLANEOUS

(a)          Relationship of the Parties.  Gabbit and Customer are independent contractors, and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise, or agency between Gabbit and Customer.

(b)          Assignment.  Gabbit may assign this Agreement and any of its rights and obligations hereunder at any time. Customer may not transfer or assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Gabbit. Notwithstanding the foregoing, Customer shall be permitted to assign this Agreement to any successor person or entity in the event of a sale of all or substantially all of the assets of Customer or a controlling equity interest in Customer (the “Permitted Transferee”) provided that Customer shall remain liable for all obligations hereunder unless and until the Permitted Transferee either: (i) enters into a new Service Contract covering, inter alia, the existing Services; or (ii) assumes this Agreement in writing. Any purported transfer or assignment in violation of this Section 18 (b) is null and void ab initio. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the Parties, their successors, permitted assigns, and legal representatives.

(c)           Notices. Except where otherwise expressly stated in the Agreement, any notice, demand or communication required, permitted, or desired to be given under this Agreement shall be in writing and shall only be deemed effectively given: (i) when personally delivered; (ii) when delivered by nationally recognized overnight courier; (iii) when sent, if by e-mail (in each case, with confirmation of transmission if requested), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; or (iv) five (5) days after being sent by certified or registered mail, return receipt requested, in each case addressed as follows:

If to Gabbit:

Gabbit, LLC
9415 Dielman Rock Island Industrial Dr.
St. Louis, MO 63132
Attn: Legal Department

In each case with a copy to legal@gabbit.com

To Customer: at either the physical address or email address associated with the Customer Account. Customer acknowledges and agrees that all electronic notices have the full force and effect of paper notices.

The addresses to which notices may be given by either Party may be changed upon written notice given to the other Party pursuant to this Section 18 (c) or by Customer in the Administrative Portal.

(d)          Force Majeure. Neither Party shall be liable to the other Party for any delay, failure in performance, loss, or damage to the extent caused by a Force Majeure Event, except that Customer’s obligation to pay for Services provided shall not be excused. Changes in economic, business or competitive condition shall not be considered force majeure events. The suspension of obligations under this Section 18 (d) shall under no circumstances be a cause of liability for failure to perform the obligation in question, nor induce the payment of damages or penalties for late payment.

(e)          Third-Party Beneficiaries. Gabbit and Customer agree that there will be no third-party beneficiaries to this Agreement.

(f)           Internal Customer Activities. Gabbit does not have any obligation to assist in or otherwise mediate in the event of any dispute between Customer representatives or Customer and any third party with respect to ownership or control of the Account or Account Data. All information within Gabbit’s records regarding the ownership or control of an Account, Account Data and/or the use of (and access to) the Admin Portal, Services ordered, and numbers assigned to an Account will be definitive and controlling for purposes of administering the Account. In the event of any such dispute, Gabbit may take any course of action that it deems appropriate based on the information available, which includes declining to take any course of action.

Gabbit may access your Account and related data as required to provide the Services. However, subject to the Privacy Policy, Gabbit has no obligation to access your Account, Account Data, or any Customer Content for any other purposes. Services do not include or consist of any investigation, review, verification, production, compilation, modification, or other similar services for any Account Data or Customer Content. Services do not include the provision of any legal, accounting, or other professional services.

(g)          Headings, Interpretation. The headings, section titles, and captions used in the Agreement are for convenience of reference only and will have no legal effect. All defined terms include related grammatical forms, and, whenever the context may require, the singular form of nouns and pronouns include the plural, and vice versa. The Parties agree that this Agreement will be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore should not be construed against a Party or Parties on the grounds that the Party or Parties drafted or was more responsible for drafting the provision(s).

(h)          Governing Law. The Agreement is governed by the Laws of the State of Missouri, excluding its choice of Law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or Customer’s use of the products or Services.

(i)           Anti-Bribery. Each Party represents that in the execution of this Agreement and in the performance of its obligations under this Agreement it has complied and will comply with all applicable anti-bribery Laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and similar applicable Laws.

(j)           Export Control. Any services, products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export Laws and regulations. Customer will not use distribute, transfer, or transmit the services, products, software, or technical information (even if incorporated into other products) except in compliance with U.S. and other applicable export regulations.

(k)          Regulatory and Legal Changes. In the event of any change in Law, regulation or industry change that would prohibit or otherwise materially interfere with Gabbit’s ability to provide Services under this Agreement, Gabbit may terminate the affected Services or this Agreement or otherwise modify the terms thereof.

(l)           Entire Agreement. The Agreement, together with each Order, any Service Contract and any Service Addendum, each of which is expressly incorporated by reference into this Agreement, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes and replaces any and all prior or contemporaneous understandings, proposals, representations, marketing materials, statements, or agreements, whether oral, written, or otherwise, regarding such subject.

(m)         Order of Precedence. In the event of any conflict between the documents comprising this Agreement, precedence will be given to the documents in the following descending order: (i) a Service Contract (if one has been entered into) and any Service Addendum delivered in accordance therewith; (ii) the applicable Order; (iii) the main body of this Agreement and the Privacy Notice; and (iv) any other document expressly referred to in this Agreement which governs the Services.

(n)          Future Changes. Gabbit may change these Terms from time to time upon delivery of electronic or written notices to Customer. Gabbit generally provides written notice of changes to Customer’s Account, including this Agreement and any other legal agreements, via email, electronic notice on the Website, or on Customer Invoices. Customer agrees to carefully read and review each such e-mail notice, electronic notice, and Invoice regarding any such notices of changes to the Account. The modified Terms shall replace and supersede all previously agreed to electronic and written terms, as well as any prior versions of this Agreement. Changes to these Terms shall be effective upon posting, and Customer understands and agrees that if Customer uses the Services after the date on which the Terms have changed, Gabbit will treat the use of the Services as acceptance of the updated Terms, with prospective effect. Customer agrees that it shall be solely responsible for: (i) making sure that Customer’s registered email account is current and functional; (ii) checking Customer’s registered email account on a routine basis; (iii) checking the Website and Customer Invoices on a routine basis; and (iv) making sure that communications from Gabbit are not blocked or rendered undeliverable by Customer, any computer used by Customer, any software installed on any such computer, Customer’s Internet service provider, or for any other reason.

(o)          Severability and Waiver. In the event any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, such provision(s) will be stricken and the remainder of this Agreement will remain legal, valid and binding. The failure by either Party to exercise or enforce any right conferred by this Agreement will not be deemed to be a waiver of any such right or to operate so as to bar the exercise or enforcement of any such or other right on any later occasion. Except as otherwise expressly stated in this Agreement, all rights and remedies stated in the Agreement are cumulative and in addition to any other rights and remedies available under the Agreement, at Law, or in equity.

(p)          Publicity. Notwithstanding anything to the contrary in this Agreement, Gabbit may identify Customer as a customer of Gabbit (including placement of any Customer logo or trademark on the Gabbit website and promotional materials) and may refer to this Agreement in connection with its business deals, press releases, and marketing and/or promotional materials.

(q)          Non-disparagement. Customer shall not directly (or indirectly through a third party) engage in any conduct or make any communication (public or private) that disparages Gabbit, the Services or the App in any way. Such communications include, but are not limited to, publishing, posting, printing, disseminating, or otherwise making such disparaging statements on or through the Internet, in any blog, or through any other form of social media. Customer further agrees not to solicit or encourage, directly or indirectly, any such statements, comments, or communications by any third-party.

(r)           Execution. Each Party represents and warrants that: (i) it possesses the legal right and capacity to enter into the Agreement and to perform all of its obligations thereunder; (ii) the individual executing an Electronic Signature regarding the Agreement on that Party’s behalf has full power and authority to execute and deliver the same; and (iii) the Agreement will be a binding obligation of that Party.

(s)           Electronic Signature and Counterparts. This Agreement including but not limited to any Service Contract or Service Addendum, may be executed electronically and in separate counterparts, each of which when taken together shall constitute one and the same instrument. Each Party agrees that an Electronic Signature, whether digital or encrypted, is intended to authenticate this Agreement and to have the same force and effect as manual signatures.

(t)           Survival. The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of this Agreement or an Order will survive expiration or termination of this Agreement. For avoidance of doubt, the provisions of this Agreement relating to intellectual property ownership, customer representations, confidentiality, use policies and restrictions, equipment, number porting and availability, storage of user information, customer feedback, publicity rights, non-disparagement, additional software licenses, indemnification, force majeure, warranty disclaimers, limitations of liability, notices, assignment, future changes, interpretation, dispute resolution and arbitration, and choice of law shall survive termination or expiration of this Agreement for the maximum term allowable by law.

 

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