GemVoice Agreement 20160824


GemVoice by SevenGems: GemVoice Private

Seven Gems LLC

GemVoice Electronic Service Level Agreement (SLA)

Service Level Agreement Terms and Conditions

THIS SERVICE LEVEL AGREEMENT (“Agreement”) effective upon successful shopping cart checkout, is
made by and between Seven Gems LLC (“SEVEN GEMS”), and the SLA purchaser as denoted during the
checkout process (hereinafter “CLIENT”). SEVEN GEMS and CLIENT may be referred to collectively as
the “parties” or individually as a “party”.

WHEREAS, CLIENT desires SEVEN GEMS to provide certain GemVoice communication services, and

WHEREAS, SEVEN GEMS desires to provide such GemVoice communication services to CLIENT,

NOW THEREFORE, for and in consideration of the mutual promises, terms, provisions, and conditions
herein, the parties hereby agree as follows:

TERMS:
1. Services. SEVEN GEMS shall provide certain communication services comprised of GemVoice components as selected during shopping cart checkout (“Services”) to CLIENT.
2. Representations, Warranties, and Covenants. (a) In addition to any other representations and warranties contained in this Agreement, each party represents and warrants to the other as of the date of this Agreement that (i) it is duly organized and validly existing and in good standing in the jurisdiction of its organization, (ii) it has the full right and authority to enter into, execute, deliver, and perform its obligations under this Agreement, (iii) this Agreement constitutes its legal, valid and binding obligation enforceable against such party in accordance with its terms, except as may be limited by applicable bankruptcy and other similar laws, (iv) there is no litigation, action, proceeding or investigation pending or, to the best of its knowledge, threatened before any court or other Governmental Authority by, against, affecting or involving any of its business or assets that would materially affect its ability to carry out the transactions contemplated herein, (v) its execution and performance of this Agreement does not constitute a breach of any term or provision of, or a default under any material contract or agreement to which it is a party.
(b) SEVEN GEMS covenants that it shall comply with all applicable Federal, State, local and foreign laws and regulations in the performance of the Services rendered under this Agreement.
3. Confidentiality. The parties acknowledge that during the course of this Agreement, (i) SEVEN GEMS will have access to CLIENT information and (ii) CLIENT will have access to SEVEN GEMS information. Parties agree that they shall not, during the term of this Agreement or at any time thereafter, knowingly use or disclose to any person, firm or corporation such Confidential Information.
4. Call recording. SEVEN GEMS does not record real-time communications or have access to this information, unless call recording components are offered and specifically added.
5. Required production. If SEVEN GEMS should be required to produce information in accordance with any CLIENT legal proceeding, CLIENT will be responsible for SEVEN GEMS legal fees and production costs.
6. Overage. CLIENT may incur overage charges for using minutes beyond the subscribed calling plan, changes to their system configuration, or usage in excess of fair-use policies. Overage bills will be subject to the same terms and conditions as standard bills.
7. Bill increases. SEVEN GEMS may raise costs for Services by giving CLIENT 60 days written notice prior to any such proposed increase.
8. Taxes. CLIENT will pay all taxes (including, without limitation, all local, state, and federal sales, use, rental, and license taxes) which may now or hereafter be imposed on SEVEN GEMS or CLIENT that in relate to the Services, but excluding all taxes on or measured by the income of SEVEN GEMS.
9. Performance Warranty. (a) SEVEN GEMS warrants that all materials and equipment furnished under this Agreement, will be new unless otherwise specified, of good quality, and be free from defects in workmanship and materials (the “Warranty”). The Warranty shall remain fully enforceable throughout the term of this Agreement (the “Warranty Period”). During the Warranty Period, SEVEN GEMS, at its sole cost and expense, shall make good, by repair or replacement, at its sole option, any defects or deficiency in workmanship and materials, which may become apparent or be discovered due to imperfect workmanship, faulty design or faulty material or performance; provided that no repairs, substitutions, modifications, or additions have been made, except by SEVEN GEMS, with SEVEN GEMS's written permission, and provided that after installation such equipment or materials have not been subjected by non-SEVEN GEMS personnel to accident, neglect, misuse, or use in violation of any instructions supplied by SEVEN GEMS.
(b) The Warranty shall constitute the exclusive remedy of CLIENT and the exclusive liability of SEVEN GEMS for any breach of any warranty related to the equipment and materials furnished by SEVEN GEMS pursuant to this Agreement.
(c) SEVEN GEMS shall use reasonable efforts to minimize the period of time that the equipment or systems are out of service for warranty repair. CLIENT agrees to cooperate with SEVEN GEMS to facilitate the repair activity. The repair or replacement of any equipment or material covered hereunder includes the delivery to CLIENT of a descriptive report of the fault found and, when appropriate, of the repair carried out on such or equipment or systems.
(d) The warranties set forth herein are exclusive, and SEVEN GEMS expressly disclaims all other warranties, whether written or oral, implied of statutory, including but not limited to, any warranties of merchantability and fitness for a particular purpose, with respect to the equipment and systems provided hereunder.
10. Cancellation. CLIENT may terminate this Agreement at any time by providing 30 days prior written notice. SEVEN GEMS may terminate this Agreement at any time by providing 180 days prior written notice. SEVEN GEMS will promptly remove any leased, rented, borrowed, or demo equipment upon the date of cancellation from CLIENT’s offices.
11. Migration. SEVEN GEMS is not responsible for migration of existing systems into its GemVoice system, or the outbound migration of the GemVoice system, resources, or data to a new or previous system.
12. Number Portability. SEVEN GEMS will comply with FCC Number Portability regulations concerning inbound and outbound ports.
13. Late payment. SEVEN GEMS will assess 1.5% per month interest on late payments.
14. Disconnection. SEVEN GEMS may terminate the Services upon any undisputed amount becoming 60 days or more past due. CLIENT will be subject to a reconnect fee of 15% such past due amount.
15. Assignment. SEVEN GEMS may assign this Agreement to an affiliate or purchaser of some or all of the assets of SEVEN GEMS. CLIENT may assign this Agreement to an affiliate or purchaser of some or all of the assets of CLIENT with written consent from an officer of SEVEN GEMS.
16. Disputes. The parties agree to exercise their best efforts to settle all disputes arising under this Agreement by mutual agreement. If agreement cannot be reached, the parties shall be free to exercise any legal or equitable remedies, which may be available under this Agreement and the law applicable thereto. The parties waive rights to trial by jury. The prevailing party of any dispute action is shall be entitled to full recovery of its legal fees.
17. Indemnification. Each party agrees to indemnify, protect, defend and hold harmless the other party, and their respective officers, directors, shareholders, agents and employees and their respective heirs, legal representatives, successors and assigns, from and against any and all liabilities, losses, damages, claims and expenses (including reasonable attorneys’ fees and disbursements) of any kind at any time relating to, arising out of or resulting from loss or damage to property or any death or sickness or injury to any person resulting directly from the negligent or intentional acts or omissions of such party or any of its subcontractors and any claim of loss or damage arising out of a party’s failure to comply with or violation of applicable laws. Notwithstanding any other provision of this Agreement, this obligation of indemnity shall not be limited.
18. Waiver. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of either party to require the performance of any term or obligation of this Agreement, or the waiver by either party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
19. Insurance. Each party shall be responsible for purchasing and maintaining its own liability insurance sufficient to protect it against claims that may arise under this Agreement.
20. Internet Transit. CLIENT will provide their own Internet connection(s). SEVEN GEMS is not responsible for guaranteeing or servicing connections or routes to and from our systems.
21. Network and IT support. SEVEN GEMS is not providing network or IT support. CLIENT is responsible for all network configurations, Ethernet, network infrastructure, network devices, switches, firewalls, and routers, maintenance, security, and support.
22. Quality of Service (QoS) support. SEVEN GEMS is not responsible for ensuring quality of service beyond our network.
23. Training. SEVEN GEMS provides self-service portals and documentation and is not responsible for system or end-user phone training, unless otherwise negotiated.
24. Notices. Any notices, requests, demands or other communications provided by this Agreement shall be in writing and shall be effective when delivered in person or mailed, postage prepaid, registered or certified, and addressed to all parties.
25. Amendment. No amendment, modification, consent or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by an officer of each of the Parties.
26. Force Majeure. Neither Party shall be liable for delays in the performance of any of its obligations hereunder due to causes beyond its reasonable control, which shall include acts of God, strikes and governmental authorities.
27. Limitation of Liability. In no event shall either Party be liable to the other Party or to any third party, for any indirect, incidental, special, punitive, or consequential damages, including but not limited to loss of profits, revenue, data or use, whether in an action for breach of contract, even if advised of the possibilities of such damages. The maximum liability by either Party to the other under this Agreement shall in no event exceed the total amount of this Agreement. The foregoing liability limitations shall not apply with respect to damages occasioned by the willful misconduct or gross negligence of either party, or disclosure of SEVEN GEMS confidential information.
28. Enforceability. The invalidity or unenforceability of any portion of this Agreement shall not affect or limit the validity or enforceability of its remaining provisions. In case any one or more provisions of this Agreement shall for any reason be held invalid or unenforceable in any respect, such invalid or unenforceable provision(s) shall be modified and/or construed so that it will be valid and enforceable to the maximum extent permitted by law if such modification or construction reflects the true intent of the parties hereto.
29. Compliance. Seven Gems is not responsible for adherence to any specific compliance guidelines.
30. Governing Law. The laws of New York, without regard to its conflicts of law provisions, shall govern the construction, validity, performance, and effect of this Agreement for all purposes. The parties hereto consent to personal jurisdiction of the courts in New York and agree that proper venue for any action hereunder shall be in New York.
31. Entire Agreement. This Agreement contains the entire understanding of the parties hereto with respect to subject matters contained herein and supersedes any prior written or oral agreements.

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