Master Services Agreement for Data Services

This Master Services Agreement for Data Services (“Agreement”) is entered by Momentum Telecom, Inc. (“Momentum,” “we,” “our” or “us”) and the customer signing below (“Customer,” “user,” “you,” or “your”) as of the date of last execution (“Effective Date”), and, together with any Customer Service Order(s) you executed with Momentum (“Service Order”), constitutes the Agreement between Momentum and Customer with respect to Momentum's business communications services and any related products or services (collectively, the “Service”). This Agreement governs both the Service and any equipment provided by Momentum to be used in conjunction with the Service (“Equipment”). If there is any conflict between the terms of any executed Service Order and this Agreement, the Service Order shall control.

From time to time we may revise this Agreement, our Acceptable Use Policy (“AUP”), our Privacy Policy and other policies. We will provide notice of such revisions by posting revisions to our website or sending an email to the email address that you provide to receive communications from us, or to your Web Account. You agree to visit our website and your Web Account periodically and to check your email box to review any such revisions. By continuing to use our services after revisions are effective, you accept and agree to abide by those revisions.

BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ AND UNDERSTAND FULLY THIS AGREEMENT.

1. Service

1.1 Term and Termination

The Term of this Agreement shall commence upon the Effective Date and continue so long as any Service Order is in effect. The Term for the Service at a given Location shall be as specified in the Service Order(s) for such Location. Unless otherwise provided in the Service Order, the Term of such Service Order will automatically renew for successive terms of one (1) month thereafter (in each case, a “Renewal Term”), until terminated in accordance with the remaining terms of this Agreement.

(a) Termination for convenience

Either party may terminate a Service Order, for any reason or for no reason, (i) at the end of the Initial Term by providing the other party with written notice of termination not less than sixty (60) days prior to the end of the Initial Term or (ii) at the end of any Renewal Term by providing the other party with written notice of termination not less than thirty (30) days prior to the end of the Renewal Term.

(b) Termination for breach

Either party may terminate this Agreement and/or any Service Order(s) if the other party has committed a material breach thereof and such breach is not cured within thirty (30) days of the date the party in breach receives written notice of the breach. If we terminate under this Section, you shall pay us liquidated damages in the amount of the Monthly Revenue Commitment multiplied by the number of months (or any portion thereof) remaining in the then-current Term of the terminated Service Order(s) (“Termination Fee”), plus all fees incurred prior to the date of termination.

(c) Early termination

Other than termination pursuant to Sections 1.1(a) or 1.1(b) or for other reasons stated in a Service Order, you may terminate this Agreement and/or any Service Order(s) by thirty (30) day written notification to us and the Agreement or Service Order(s) shall terminate thirty (30) days thereafter, at which time you shall pay us the Termination Fee for all terminated Service Orders, plus all fees incurred prior to termination.

(d) Liquidated damages

The parties agree that, at the inception of the Agreement, it would be impossible to determine the damages suffered by Momentum for your early termination or breach and that the liquidated damages referred to above bear a reasonable relationship to the damages that Momentum is likely to incur. The parties further agree that the liquidated damages provision is a material term of the Agreement, and without its inclusion, Momentum would not be able to provide the Service at the prices listed in the Service Order.

1.2 Prohibited Uses

You agree to abide by Momentum's Acceptable Use Policy, which is incorporated herein by reference. You shall not use the Service and the Equipment in any unlawful or improper manner, including, without limitation, conduct that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, or invasive of another's privacy. We reserve the right to disconnect your Service if, after investigation and in our reasonable discretion, we determine that you have used the Service or the Equipment in any such manner. We shall use commercially reasonable efforts to provide Customer with notice and evidence of such unlawful or improper use prior to any such disconnection.

Although we will limit such disconnection to the specific Customer Location(s) involved if commercially reasonable to do so, we reserve the right to disconnect Service generally as circumstances may require in our reasonable discretion. If we believe that you have used the Service or the Equipment in an unlawful or improper manner, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution.

1.3 Copyright; Trademark; License

The Service and Equipment and any firmware or software used to provide the Service, and all Service, information, documents and materials on our websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All our websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) are and will at all times remain our exclusive property. Nothing in this Agreement grants you the right or license to use any of our marks.

You have not been granted any license to use the firmware or software used to provide the Service, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.

The right to use any of the Service granted to you is nonexclusive and nontransferable and is intended solely for your business use and for no other purpose. You shall prohibit use of the Service by or for the benefit of any third party, including, without limitation, any outsourcing, application service provider, time-sharing or service bureau arrangement.

1.4 Alteration of Service or Equipment

You shall not: (i) copy or adapt the Service for any purpose, except as specifically permitted under this Agreement; (ii) make any use of the Service or Equipment that is inconsistent with its intended purpose; (iii) attempt to hack or otherwise disrupt the Service or cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Service or Equipment; or (iv) change the electronic serial number or identifier of the Equipment to perform a factory reset thereof without our prior written consent.

1.5 Theft of Service

You shall not use the Service in a manner calculated to avoid Momentum policies and procedures. You shall notify us without unreasonable delay (but in no event later than seventy-two (72) hours of Customer becoming aware of any theft, fraudulent or unauthorized use of the Service) in writing or by calling our customer support line, if the Equipment is stolen or if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner.

1.6 Non-Circumvention

During the Term of this Agreement, you shall not contract directly with Momentum's underlying carrier for the Service referenced on any Service Order without the written consent of Momentum, unless there is an existing agreement in place between Customer and the underlying carrier prior to the execution of the Service Order.

2. Equipment

2.1 Customer Equipment

You shall not access the Service through any medium or Equipment which we have not authorized in writing, nor may any medium or Equipment by which the Service is provided be shared, moved, modified, interfaced, copied, broadcasted, reproduced, ported or otherwise routed with or to any other equipment without our prior written consent. Service expressly provided by Momentum for operation on your own equipment shall be furnished without warranty as to compatibility, fitness or performance with such equipment, and you shall bear all cost and responsibility for such equipment.

2.2 Equipment Purchases

You may purchase telecom Equipment to utilize the Service. You are responsible for the shipping charges associated with the initial delivery of the Equipment. You will be deemed to have accepted the items five (5) days after each is delivered and installed, unless you notify us in writing to the contrary. If you receive Equipment that is visibly damaged, you must contact our customer care department within five (5) days of delivery to make arrangements for the return and/or replacement of the damaged Equipment. Subject to the foregoing exceptions, all Equipment sales are final.

We may, at your request, facilitate the provision of Equipment from a third-party supplier or resell certain Equipment. The original Equipment manufacturer and not Momentum shall be responsible for any Equipment defects. We will pass all original Equipment manufacturer warranties for the Equipment to you and will not have any liability to you regarding such Equipment.

2.3 Equipment Rentals

We may rent Equipment to you for the sole purpose of use in connection with the Service. The term of use of the Equipment will be coterminous with the end of the term for the Service and any extensions thereof. You may return any defective Equipment to us for a replacement if it has not been misused or damaged by you, your agents or invitees. You shall be responsible for ensuring that any Momentum Equipment is maintained in a secure location, and you shall be fully liable for any and all costs and charges associated with damage to or loss of Momentum Equipment.

If you are not in default under this Agreement, your End of Contract options for Equipment are: (i) to automatically renew the term for your Service, including the Equipment; (ii) purchase the Equipment for its then fair market value from Momentum or its vendor, as may be applicable; or (iii) return the Equipment. You must give us sixty (60) days prior written notice of your option choice.

3. Charges; Payments; Taxes; Disconnection

3.1 Billing

Unless otherwise agreed in the Service Order, billing will commence on the Firm Order Commitment Date (“FOC Date”) when the carrier releases the circuit to Momentum, which FOC Date will typically precede Service activation on the circuit due to Momentum testing requirements. We will bill all charges for service and applicable surcharges, fees, and taxes monthly in advance (except for usage-based charges, which will be billed monthly in arrears). We will charge you immediately upon disconnection for any accrued and unbilled amounts and recovery fees or Termination Fees (including taxes), if applicable, that are due.

3.2 Payment and Collection

Invoices (or the undisputed portion thereof, in the event of a dispute) shall be paid no later than thirty (30) days from the invoice date. Any payment not made when due may be subject to a late payment fee equivalent to the lesser of (i) one and a half percent (1.5%) per month; or (ii) the highest rate allowed by law. Upon no less than ten (10) days' notice to you, we may terminate the Service and this Agreement for non-payment if any fees or charges are not paid within fifteen (15) days of the due date.

3.3 Billing Disputes

You must notify us in writing within thirty (30) days after receiving your invoice if you dispute any charges on that statement with a reasonably detailed description of the basis of the dispute or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to Momentum Telecom, Inc., 1200 Corporate Drive, Suite 300, Birmingham, AL 35242.

3.4 Disconnection; Discontinuance of Service

We reserve the right to suspend or discontinue the Service generally, or to disconnect your Service or a service component, if in our reasonable discretion it becomes commercially impracticable to continue providing such Service. In that event, we shall provide no less than sixty (60) days' advance notice prior to disconnection of Service. If we discontinue the Service generally, or disconnect your Service other than for cause, you will only be responsible for charges accrued through the date of disconnection, including a pro-rated portion of the final month's charges.

3.5 Taxes

State and local governments may assess taxes, surcharges and/or fees on your use of the Service. These charges may be a flat fee or a percentage of your Service charges and may change from time to time without notice. These charges are based on the rates applicable to the address you provided to us. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax exempt status. Tax exemption will only apply from and after the date we receive such certificate.

4. Limitation of Liability; Indemnification; Warranties

4.1 Limitation of Liability

IN NO EVENT WILL WE, OUR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OR CORRUPTION OF DATA, LOST PROFITS OR OTHER ECONOMIC LOSS, LOST OR IMPAIRED GOODWILL, OR ANY BUSINESS INTERRUPTION) ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR EQUIPMENT PROVIDED UNDER THIS AGREEMENT.

WE WILL NOT BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICE, OR ANY INTERRUPTION OR DEGRADATION OF SERVICE QUALITY, WHICH RESULTS FROM ANY CAUSE THAT IS BEYOND OUR REASONABLE CONTROL, INCLUDING AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, OR OTHER UNAFFILIATED THIRD PARTY; FAILURE OR UNAVAILABILITY OF EQUIPMENT, NETWORK OR FACILITIES; EQUIPMENT, NETWORK OR FACILITY RELOCATION, UPGRADE OR MODIFICATION; OR SERVICE FAILURE CAUSED BY THE LOSS OF POWER TO YOU.

NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, OUR MAXIMUM LIABILITY WITH RESPECT TO ANY CLAIMS RELATED IN ANY WAY TO OUR SERVICES, EQUIPMENT OR RIGHTS SHALL IN NO EVENT EXCEED THE AMOUNTS PAID TO US BY YOU UNDER THE APPLICABLE SERVICE ORDER(S) DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

4.2 Indemnification

You shall defend, indemnify and hold harmless Momentum, all employees, officers, directors, partners, members and shareholders of Momentum from and against any and all Claims relating to the Service and arising from or with respect to (i) any breach or violation by you of any of the terms, conditions or provisions of this Agreement or of any applicable law, rule or regulation; (ii) any act or omission by you constituting negligence or willful misconduct; or (iii) any injury to or death of any person or damage to or loss of property caused by you.

4.3 Limited Warranty

Momentum warrants to Customer that (a) it has the right to enter into this Agreement, (b) the use of the Service will not infringe on any intellectual property or other rights of a third party, and (c) the Service shall be performed in a professional and workmanlike manner, and in accordance with the requirements specified herein and in any Service Order. In the event of any breach by Momentum of the foregoing limited warranty, we shall immediately undertake to correct the deficiency using commercially reasonable efforts. If we are unable to correct the deficiency within a commercially reasonable time, then either party may terminate Service at the Location(s) affected by such deficiency without cost or penalty.

OTHER THAN THE FOREGOING LIMITED WARRANTY AND AS OTHERWISE EXPRESSLY SET FORTH IN THE AGREEMENT (INCLUDING ANY INCORPORATED SERVICE LEVEL AGREEMENT(S)), WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR EQUIPMENT FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.

4.5 Content

You will be liable for any and all liability that may arise out of the content transmitted by you or to any person, whether authorized or unauthorized, using your Service or Equipment. You shall ensure that your and your User's use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use.

5. Miscellaneous

5.1 Entire Agreement

The Service Order, this Agreement and all documents or website content expressly incorporated therein constitute the entire agreement between you and Momentum and govern your use of the Service, superseding any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.

5.2 Severability

If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable.

5.3 Privacy

This Agreement and the Service provided hereunder are subject to Momentum's Privacy Policy. Momentum's Service utilizes, in whole or in part, the public Internet and third-party networks to transmit voice and other communications. Although Momentum engages in industry best practices with respect to privacy and security, Momentum does not and cannot guarantee the privacy of Customer data with respect to the use of the Service.

5.4 Subcontractors

From time to time during the term of this Agreement, we may, in our reasonable discretion, delegate performance of some or all of our rights and obligations hereunder to third parties. You hereby consent to such subcontracting activity, provided that Momentum shall remain responsible to you for the performance of any such obligations.

5.5 Confidentiality

To the extent that the Parties have entered into a separate Non-Disclosure Agreement, such NDA is hereby incorporated by reference and shall be considered part of this Agreement. In the event of any conflict between this Agreement and the NDA, this Agreement shall control.

5.6 Governing Law / Venue

This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia without regard to principles of conflicts of laws. Each of the parties irrevocably submits to the exclusive jurisdiction of the state and federal Courts located in Fulton County, Georgia.

5.7 Attorney's Fees

If either Party brings a civil action related in any manner to this Agreement, the prevailing party shall recover from the losing party all of the prevailing party's reasonable attorney's fees and litigation expenses incurred.

5.8 Export Controls

You acknowledge that the export, import, and use of certain hardware, software, and technological data provided under this Agreement is regulated by the United States and other governments and agree to comply with all applicable laws and regulations.

5.9 Customer Representations

You represent and warrant that you possess the legal right and ability to enter into this Agreement, and that your name, contact information and registered location are true and correct. You agree to promptly notify us whenever your billing information changes, and to be financially responsible for your use of the Service.

5.10 Force Majeure

We shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond our reasonable control, including without limitation, acts of God, earthquake, fire, flooding, pandemic, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, or late delivery by suppliers.

5.11 No Third-Party Beneficiaries

No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third-party beneficiary rights.

5.12 Assignment

Neither party may assign, subrogate or transfer any interest, obligation or right under this Agreement without the prior consent of the other party, which consent shall not be unreasonably withheld. We may assign this Agreement without your consent to any of our direct or indirect wholly-owned subsidiaries.

5.13 Interpretation

The parties agree that, before signing this Agreement, each has had an opportunity (and is advised) to consult legal representation. Consequently, this Agreement shall not be construed more strongly as against one party versus the other.

5.14 Execution

This Agreement may be executed in one or more counterparts, each of which will be deemed an original. Signatures exchanged by electronic means shall be as valid as an original signature.

5.16 Survival

All obligations of the parties under this Agreement which, by their nature, would continue beyond the termination, cancellation, or expiration of this Agreement, including those provisions relating to payment of outstanding fees, ownership and title, confidentiality, indemnity, limit of liability, and dispute resolution shall survive.