Unified Managed Services Terms and Conditions

updated March 12, 2024

These Unified Managed Services Terms and Conditions (“UMS Terms”) govern the managed services that  net2phone 2.0 America, Inc. (“we”, “us”, “our”, “LiveNinja”, or “Net2Phone”) performs for you, as well as any licenses, services, or products that we sell or re-sell to you, all of which are set forth in the quote for such services (collectively, the “Managed Services”).  We may also provide you with a service description that further describes the scope and provision of the Managed Services (“Service Description”). Net2Phone and you may be referred to herein together as the “Parties” and individually as a “Party.”

By using the Managed Services (or by accepting the quote), you are agreeing (i) that you have read and understand these UMS Terms, (ii) that, if you are acting (or indicate you are acting) in a representative capacity, you have full authority to legally bind the person or entity on whose behalf you are acting, and (iii) that you, and such person or entity, will be bound by these UMS Terms. DO NOT USE THE MANAGED SERVICES UNTIL YOU HAVE READ THESE UMS TERMS. IF YOU DO NOT AGREE WITH THEM, DO NOT USE THE MANAGED SERVICES.

We may modify these UMS Terms at any time and such modifications shall be deemed effective immediately upon posting of the modified UMS Terms. You agree to review these UMS Terms periodically to be aware of such modifications and your continued use of the Managed Services constitutes your acceptance to be bound by the revised UMS Terms.

1. Upon establishing a Managed Services account (“Account”) and at subsequent times as requested by Net2Phone, you agree to provide to Net2Phone your true, accurate, current, and complete personal name and/or business name, billing and shipping addresses, email address, contact phone number, payment information, and other information which Net2Phone deems necessary to administer your Account or to provide the Managed Services to you (“Account Information”). You represent and warrant that the Account Information you provide is accurate, current, and complete, and agree to promptly update any of the information if it changes. If you provide Account Information that is, or that Net2Phone suspects to be, false, inaccurate, not current, incomplete, fraudulent, or otherwise unlawful, Net2Phone has the right, in its sole discretion, to immediately suspend the Managed Services to you. You hereby grant to Net2Phone a royalty-free, non-exclusive license to copy, store, record, transmit, display, print, and use Account Information to the extent required to provide or improve the Managed Services, in accordance with applicable law and our Privacy Policy. We may also use Account Information to provide you with information about features of the Managed Services, to contact you for updates to your Account information, and to provide you with marketing and promotional material about the Managed Services, as well as Net2Phone’s other products and services. You hereby agree that Net2Phone may send you (and any other user of the Managed Services connected to your Account) marketing and promotional materials via e-mail, regular mail, or any other medium; provided that you may unsubscribe to such materials at any time by notifying Net2Phone Customer Support. Net2Phone may disclose or provide access to your Account Information pursuant to a judicial or other governmental request or order.

2. We will be entitled to rely on any directions or consent provided by your personnel or representatives who are authorized to provide such directions or consent (“Authorized Personnel”). If no Authorized Personnel is identified in an applicable quote or if previously Authorized Personnel are no longer available to us, then your Authorized Personnel will be the person(s)who (a) accepted the quote, and/or (b) who are designated by you during the course of our relationship to provide us with direction or guidance. We will be entitled to rely upon directions and guidance from your Authorized Personnel until you make us aware, in writing, of a change of status of the Authorized Personnel.

3. As used in these UMS Terms, “Environment” means any computer network (cloud-based or otherwise), computer system, peripheral or device (virtual or physical) procured, installed, maintained, monitored, or operated by Net2Phone pursuant to a quote. In all situations (including those in which we are co-managing an Environment with your internal IT department), we will not be responsible for changes (or issues that arise from those changes) to the Environment that are not authorized by us. Examples of such changes include modifying or moving the Environment or installing software in the Environment. Only those services expressly listed in a quote will be provided to you; all other services and related matters are out-of-scope (“Out of Scope Services”). Under no circumstances shall N2P have any liability for any claims or causes of action arising from or related to Out of Scope Services.

4. If the Managed Services require certain minimum hardware or software requirements as indicated in a quote or Service Description (“Minimum Requirements”), then you agree to implement and maintain those Minimum Requirements as an ongoing requirement of us providing the Managed Services to you.  Patches and updates to hardware and software (“Updates”) are created and distributed by third parties (such as equipment or software manufacturers) and may be supplied to us from time to time for installation into the Environment. If Updates are provided to you as part of the Managed Services, then we will implement and follow the manufacturers’ recommendations for the installation of Updates. We do not guarantee that any Update will perform properly. We will not be responsible for any downtime or losses of any kind arising from or related to the installation, use, or inability to use any Update.  We will not be responsible for the remediation of any device, equipment or software that is rendered inoperable or non-functional due to the Update. We reserve the right to refrain from installing an Update, in our sole discretion, until we have determined that the Update will be compatible with the configuration of the Environment.

5. You hereby grant to us and our designated third-party vendors the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment solely as necessary to enable us or our vendors, as applicable, to provide the Managed Services. Depending on the services being provided to you, we may be required to install one or more software agents into the Environment through which such access may be enabled (“Software Agents”). You agree not to remove, disable, circumvent, or otherwise disrupt any Software Agents unless we explicitly direct you to do so. It is your responsibility to secure, at your own cost and prior to the commencement of any Managed Services, any necessary licenses, permits and consents necessary for Net2Phone and/or its vendors to provide Managed Services to the Environment and, if applicable, at your designated premises, both physically and virtually.

6. If, in our discretion, a hardware or software issue requires vendor or original equipment manufacturer (OEM) support, we may contact the vendor or OEM (as applicable) on your behalf and invoice you for all fees and costs involved in that process. Similarly, if you require additional equipment to maintain the availability of the Managed Services, then we may purchase such equipment; provided, however, that we will obtain your permission before incurring such expenses on your behalf unless exigent circumstances require us to act otherwise.

7. All equipment, hardware, software, peripherals and accessories purchased by you through Net2Phone (“Third-Party Products”) are generally nonrefundable and nonexchangeable once the item is obtained from Net2Phone’s third party supplier or reseller. If you want to return a Third-Party Product, then the third-party supplier’s or reseller’s return policies will apply. Re-stocking fees may apply. You will be responsible for the payment of all re-stocking or return-related fees charged by the third-party supplier or reseller. We will use reasonable efforts to transfer to you all warranties (if any) and service level commitments (if any) for the Third-Party Products, but we will have no liability whatsoever for the performance, uptime, quality, functionality or operability of any Third-Party Products. All Third-Party Products are provided “as is” and without any warranty whatsoever as between Net2Phone and you (including but not limited to implied warranties).

8. Some of the Managed Services may be acquired from, resold from, and/or rely upon the services of, third party vendors, manufacturers, or providers (“Third-Party Providers”). Third-Party Providers may provide services that include, but are not limited to, data hosting services, help desk services, malware detection services, domain registration services, and data backup/recovery services (each, a “Third-Party Service”). Not all Third-Party Services will be expressly identified as being provided by a Third-Party Provider, and we reserve the right to utilize the services of any Third-Party Provider or to change Third-Party Providers in our sole discretion as long as the change does not materially diminish the Managed Services we provide to you.  Net2Phone is not responsible for any failure of any Third-Party Service nor the failure of any Third-Party Provider to provide services to Net2Phone or to you.

9. In connection with the Managed Services, you may be required to accept the terms of one or more third-party end user license agreements (“EULAs”). If the acceptance of a EULA is required in order to provide the Managed Services to you, then you hereby grant us permission to accept the EULA on your behalf. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in these UMS Terms. You agree to be bound by the terms of such EULAs and will look only to the applicable third-party supplier for the enforcement of the terms of such EULAs. If, while providing the Managed Services, we are required to comply with a third-party EULA and the third-party EULA is modified or amended, we reserve the right to modify or amend any applicable quote to ensure our continued compliance with the terms of the EULA.

10. You hereby represent and warrant that we are authorized to access all computers, devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smartphones and tablet computers) that are connected to the Environment (collectively, “Devices”), regardless of whether such Devices are owned, leased or otherwise controlled by you. Unless otherwise stated in writing by us, Devices will not receive or benefit from the Managed Services while the devices are detached from, or unconnected to, the Environment. You are strongly advised to refrain from connecting Devices to the Environment where such devices are not previously known to us and are not expressly covered under a managed service plan from us (“Unknown Devices”). We will not be responsible for the diagnosis or remediation of any issues in the Environment caused by the connection or use of Unknown Devices in the Environment, and we will not be obligated to provide the Managed Services to any Unknown Devices.

11. Net2Phone owns any software, codes, algorithms, or other works of authorship that we create while providing the Managed Services to you. If we provide licenses to you for third-party software, then you understand and agree that such software is licensed, and not sold, to you. You are allowed to use such third-party software subject to the terms and conditions of (i) these UMS Terms (ii) the applicable quote and (iii) any applicable EULA. No other uses of such third-party software are permitted. To the maximum extent permitted by applicable law, we make no warranty or representation, either expressed or implied with respect to third-party software or its quality, performance, merchantability, or fitness for a particular purpose.

12. Unless otherwise expressly stated in the quote, the initial service-term of the Managed Services is 36 months (“Initial Term”) and may be terminated only as provided in these UMS Terms.  The charges associated with the Managed Services are subject to an annual increase of five percent (5%), beginning with month 13 of the service-term (and continuing through the Initial Term and any Renewal Term(s)). At the conclusion of the Initial Term, the service term will automatically renew for successive 12-month terms (each such successive 12 month period referred to as a “Renewal Term”) unless you have elected not to renew the service term via notice to Net2Phone at least ninety (90) days prior to the end of the Initial Term or the then-current Renewal Term, as applicable.  In those states and jurisdictions that do not allow automatic renewals of certain service agreements, the foregoing auto-renewal terms will not apply to you. In that event, after the Initial Term, there is no Renewal Term and, after the Initial Term, the service term will continue until canceled by either party at any time upon prior written notice.  IN ORDER TO BE VALID, ANY CANCELLATION/NON-RENEWAL OF MANAGED SERVICES BY YOU MUST BE MADE IN WRITING AND SENT TO MSPSALES@LIVENINJA.COM. 

13. If Net2Phone terminates  the Managed Services prior to the end of your Initial Term (or Renewal Term, as applicable) as a result of your failure to make payment when due or upon your violation of these UMS Terms, or if you decide to cancel the Managed Services prior to the end of your Initial Term (or Renewal Term, as applicable), then you shall be responsible to pay an early termination fee calculated as the aggregate amount of charges (including applicable taxes and fees) due from you to Net2Phone under the quote from the date of termination through the end of the Initial Term (or Renewal Term, as applicable).  The termination of Managed Services shall not, by itself, cause the termination of (or otherwise impact) the status or progress of any other services between the parties.

14. In addition to Net2Phone’s right to terminate the Managed Services as set forth in other sections of these UMS Terms, Net2Phone reserves the right to terminate the Managed Services for convenience upon at least thirty (30) days’ notice to you. Upon expiration, cancellation or termination of the Managed Service for any reason, you shall relinquish and discontinue use of any access numbers, logins and/or web portals assigned or provided to you by Net2Phone or its vendors.

15. If you request our assistance to transition away from the Managed Services, we may provide such assistance subject to a separate Statement of Work to be negotiated between you and us.  The retrieval and provision of passwords, log files, administrative server and systems information, or conversion of data are deemed transition services, and are subject to you being current on all charges due and owing to us. You understand and agree that any software configurations that we custom create or program for you are our proprietary information and shall not be disclosed to you under any circumstances. Unless otherwise expressly stated in a quote, we have no obligation to store or maintain any of your data in our possession or control, including but not limited to usernames, passwords, configuration information, etc. beyond ten (10) calendar days following the termination of your Managed Services. You will indemnify and hold us harmless from and against, all claims, costs, fees, or expenses incurred by us that arise from, or are related to, our deletion of your data hosted by N2P in any form or manner beyond the time frames described in this section. Under no circumstances will we be responsible for any data lost, corrupted, or rendered unreadable due to (i) communication and/or transmissions errors or related failures, (ii) equipment failures (including but not limited to silent hardware corruption-related issues), or (iii) our failure to backup or secure data from portions of the Environment that were not expressly designated to receive such services in the quote, nor will we be responsible for the recovery of data due to any of the foregoing. Unless expressly stated in writing by us, we do not warrant or guarantee that any maintained storage device or functionality, data backup device or functionality, or load balancing functionality will operate in an error-free manner.

16. You agree to pay the fees charged by us for the Managed Services, as set forth in each quote, via wire transfer, ACH or other method of payment accepted by us in our sole discretion.  All pricing is in United States dollars. All fees will be due and payable in advance of the provision of the Managed Services unless otherwise indicated in the quote.  We reserve the right to suspend part or all of the Managed Services in the event that any portion of the fees are not timely received by us. Fees will continue to be charged during any period of suspension.  You are liable for any transactions or activities by you or anyone else that occur on Your Account, and in no event shall Net2Phone be liable for any unauthorized use of your Account. Any payments not received by the due date will bear interest at a rate of one and one-half percent (1½ %) per month or the maximum rate permitted by law, whichever is less, from the due date until paid in full.

17. Prices listed on the quote do not include any customs, duties, sales, use, value added, excise, federal, state, or local, taxes and fees or other surcharges and fees. All such taxes, surcharges and fees shall be paid by you and will be added to any amounts otherwise charged to you.  All taxes, surcharges, and fees are subject to change at any time. If you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof of exemption. 

18. Administrative Fee. You may be subject to an Administrative Fee which may be imposed to recover costs associated with, among other things, customer support; equipment installation and configuration; compliance costs and fees; protection and registration of intellectual property; civil litigation demands; as well as legal and administrative expenses related to the above.  If applicable, the Administrative Fee will appear on your quote.  The Administrative Fee is not a government-mandated charge or tax.

19. We will respond to any notification received by us of any error, outage, alarm, or alert pertaining to the Environment in accordance with the priority table supplied to you by us. You understand that there may be delays in our response or our provision of Managed Services during (i) periods of delay caused by Scheduled Down Time, Customer Downtime, Vendor Downtime (all defined below); (ii) periods in which we are required to suspend the Managed Services to protect the security or integrity of the Environment or our equipment or network; (iii) delays caused by a force majeure event.

20. If you are supplied by Net2Phone with hardware or accessories on a rental, license, or temporary basis (“N2P Equipment”), then you agree to acquire and maintain, at your sole cost, insurance for the full replacement value of the N2P Equipment. Net2Phone must be listed as an additional insured/loss payee on any such insurance policy and the policy will not be canceled or modified during the term of your Managed Services without prior written notice to Net2Phone. Upon our request, you agree to provide proof of insurance to us.  All N2P Equipment is licensed to you and is not owned by you. Upon the termination of the Managed Services, your license to use the N2P Equipment shall immediately terminate, and thereafter all N2P Equipment must be returned to us immediately at your expense. All configurations on the N2P Equipment are our proprietary information and will not be circumvented, modified, or removed by you without our prior written consent.  I If any of the N2P Equipment is missing, broken or damaged (normal wear and tear excepted) or any of N2P-supplied software is missing, we will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of any and all missing or damaged items. We reserve the right to use remote access to wipe/delete all data on any N2P Equipment and/or disable any N2P Equipment at any time without prior notice to you upon the termination of the Managed Services for any reason.

21. You warrant and represent that you know of no law or regulation governing your business that would impede or restrict our provision of the Managed Services to you, or that would require us to register with, or report our provision of the Managed Services (or the results thereof), to any government or regulatory authority. You agree to promptly notify us if you become subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Managed Services. Similarly, if you are subject to specific responsibilities under any applicable privacy law, then you agree to identify to us any data or information subject to protection under that law prior to providing such information to us or, as applicable, prior to giving us access to such information.

22. Some of the Managed Services may be provided by persons outside of the United States and/or your data may occasionally be accessed, viewed, or stored on secure servers located outside of the United States. You agree to notify us if your company requires us to modify these standard service provisions, in which case additional (and potentially significant) costs will apply.

23. The Managed Services are not intended, and will not be used, to bring you into full regulatory compliance with any rule, regulation, or requirement that may be applicable to your business or operations. Depending on the Managed Services provided, the Managed Services may aid your efforts to fulfill regulatory compliance; however, the Managed Services are not (and should not be used as) a compliance solution.

24. During your service-term for the Managed Services and for one (1) year thereafter, the Receiving Party (the Party and its affiliates, officers, directors, employees and attorneys receiving Confidential Information) shall hold the Disclosing Party’s (the Party or its affiliates, officers, directors, employees and attorneys disclosing Confidential Information) Confidential Information in confidence, shall use such Confidential Information only for the purpose of fulfilling its obligations under these UMS Terms, 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.  The Receiving Party may disclose Confidential Information only to those of its employees, agents or subcontractors who have a need to know it in order to perform its obligations under these UMS Terms.  Each Party may disclose the other Party’s Confidential Information to a governmental or regulatory entity upon request. These restrictions on the use or disclosure of Confidential Information do not apply to any information which is independently developed by the Receiving Party or lawfully received free of restriction from another source having the right to so furnish such information; after it has become generally available to the public without breach of these Terms of Service by the Receiving Party; 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 which the Disclosing Party confirms in writing is free of such restrictions.  Upon written request, the Receiving Party will promptly delete, destroy or return to the Disclosing Party, all of the Disclosing Party’s Confidential Information in its possession. For purposes of this Section, “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.  This confidentiality clause supersedes the terms of any Non-Disclosure Agreement executed between you and us prior to your acceptance of these UMS Terms.

25. Throughout the delivery of the Managed Services, we may engage in the processing of information, potentially encompassing personally identifiable information (“PII”), including by access, storage, or management of such PII. We undertake to use such PII solely for the purposes of delivering the Managed Services and shall not disclose any such PII unless such disclosure is inherently required in the service provision. Furthermore, we commit to ensuring that the processing of PII is consistently conducted in adherence with applicable law and our internal privacy policies and security measures, all of which are designed to uphold the privacy and security of such PII.

26. You understand and agree that no security solution is one hundred percent effective, and any security model may be circumvented and/or rendered ineffective by malware, ransomware, etc. We do not warrant or guarantee that all malware or malicious activity will be capable of being detected, avoided, quarantined or removed, or that any data deleted or corrupted by such malware, etc. will be recoverable, nor will we be liable to you in relation to any such deletion or corruption.   Unless otherwise expressly set forth in the quote, the recovery of data deleted or corrupted by malware is Out of Scope.

27. EXCEPT AS EXPRESSLY SET FORTH IN THESE UMS TERMS, THE MANAGED SERVICES ARE PROVIDED "AS IS" AND NET2PHONE MAKES NO WARRANTIES AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE EXTENT THAT WE CANNOT DISCLAIM A WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.  NEITHER NET2PHONE NOR ITS THIRD-PARTY PROVIDERS OR VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO THE ENVIRONMENT, OR FOR ALTERATION, THEFT OR DESTRUCTION OF YOUR DATA FILES, PROGRAMS, OR OTHER INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF NET2PHONE'S OR ITS VENDORS' NEGLIGENCE. NET2PHONE MAKES NO WARRANTY THAT THE MANAGED SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE MANAGED SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR THAT ANY DEFECTS IN THE MANAGED SERVICE WILL BE CORRECTED.

28. IN NO EVENT SHALL NET2PHONE, ITS PARENT, SUBSIDIARIES AND AFFILIATES, NOR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, VENDORS, AGENTS, CONTRACTORS AND/OR LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF NET2PHONE HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY NET2PHONE. NET2PHONE'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 LESSER OF (X) THE MONTHLY FEES NET2PHONE CHARGED YOU DURING THE ONE (1) MONTH IMMEDIATELY PRIOR TO THE DATE THAT THE EVENTS GIVING RISE TO THE ACTION OR CLAIM FIRST OCCURRED, AND (Y) TEN THOUSAND DOLLARS ($10,000). THESE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE TERMINATION, CANCELLATION OR EXPIRATION OF THE MANAGED SERVICES AND APPLY IN ANY AND ALL CIRCUMSTANCES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.

29. To the maximum extent permitted by applicable law, you shall indemnify and hold harmless, Net2Phone, its parent, subsidiaries and affiliates, and their respective officers, directors, employees, licensors, vendors, contractors, and agents  (the "Indemnified Parties") from and against any and all liability, claims, suits, demands, losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys' fees) arising out of or related to: (1) a breach by you of these UMS Terms, (2) any negligent acts, omissions to act or willful misconduct by you or any third party acting with your permission, knowledge, authority or direction, (3) your use of the Managed Services in violation of any applicable law, code, regulation, or ordinance, and/or (4) your misappropriation, breach, violation, or infringement of any right, title or interest of any third party, including but not limited to, contractual rights, intellectual property rights (including patent, trademark, copyright, and trade secret rights) and rights of privacy. The indemnification obligations set forth in this paragraph are in addition to your other indemnification obligations set forth in other sections of these UMS Terms.

30. UNDER THIS CLAUSE YOU ARE AGREEING TO WAIVE YOUR RIGHT TO SUE IN COURT AND ARE AGREEING THAT ALL DISPUTES WILL BE DECIDED BY AN ARBITRATOR, EXCEPT WITH RESPECT TO THE LIMITED EXCEPTIONS SET FORTH BELOW IN THIS DISPUTE RESOLUTION SECTION.  You agree that you may only resolve disputes with Net2Phone on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. You hereby acknowledge that class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are hereby waived by you. You agree that regardless of any statute or law to the contrary, any suit brought by you arising out of or related to use of the Managed Services or these UMS Terms must be filed within one (1) year after the earlier of: (a) when such claim or cause of action arose; or (b) termination of Managed Services to you, or be forever barred. These UMS Terms shall be governed by and construed in accordance with the laws of the State of New Jersey without giving effect to any conflict of law principles thereof which might require the application of the law of another jurisdiction.  Any controversy or claim arising out of or relating to these UMS Terms or your use of the Managed Services shall be settled by binding arbitration in accordance with the Commercial Rules of the American Arbitration Association (“Rules”). To begin arbitration proceedings against Net2Phone, you must send a letter (via certified mail) to net2Phone 2.0 America, Inc., 520 Broad Street, Newark, NJ 07102, Attention: Legal Department, requesting arbitration and describing your claim.  There is no judge or jury in arbitration, and court review of an arbitration award is limited.  However, an arbitrator can award the same damages and relief as a court. One arbitrator shall be chosen in accordance with the Rules. The Parties agree that all arbitration proceedings shall take place exclusively in the State of New Jersey, Essex County.  You agree and submit to personal jurisdiction in New Jersey.  Any award, order or judgment pursuant to such arbitration shall be deemed final and binding and may be enforced in any court of competent jurisdiction.  Notwithstanding the obligation to arbitrate and any other provisions to the contrary herein, you and Net2Phone agree that: (a) with respect to claims for unpaid invoices, Net2Phone may take the dispute to small claims court, if such dispute qualifies for hearing by such court; (b) if you fail to timely pay amounts due, Net2Phone may send your account to a collection agency and the collection agency may pursue, in court, claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or these UMS Terms; (c) Net2Phone may bring suit in court to enjoin infringement or other misuse of intellectual property rights; and (d) any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of the Managed Services may be brought in court by Net2Phone.  If for any reason a claim proceeds in court rather than in arbitration, you and Net2Phone each waive any right to a jury trial.  

31. Net2Phone shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, pandemic, earthquake, fire, flooding, fiber cuts, actions or inactions of third-party providers or suppliers, riots, sabotage, war, government requirements, or other events that are beyond Net2Phone's reasonable control.

32. Net2Phone may assign these UMS Terms and any of its rights and obligations hereunder or under a quote at any time. You may not transfer or assign these UMS Terms of Service or any of your rights or obligations under these UMS Terms or the quote without Net2Phone’s prior written consent. Any purported transfer or assignment on your part in violation of this section is void. Subject to the foregoing, these UMS Terms shall be binding on and inure to the benefit of the parties and their successors and permitted assigns.

33. Failure of either party at any time to require the other party’s performance of any obligation under these UMS Terms shall not affect the right to require performance of such obligation.  Any waiver by either party of any breach of any provision hereof shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver or modification of the provision itself, or a waiver of modification of any right under these UMS Terms.  These UMS Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this UMS Terms.

34. If any part of these UMS Terms is held invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of these UMS Terms.  

35. You agree that Net2Phone may identify you as a user of the Managed Services in its press releases, marketing materials, advertising, newsletters, mailings, tradeshows, other promotional materials, on Net2Phone's website, or any other third-party website where Net2Phone or its designated agents may promote the Managed Services. You hereby grant Net2Phone and its agents a worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display your name, trademarks, service marks, designs, logos, and symbols in connection with such purposes.

36. These UMS Terms, together with any quotes, order forms, or addenda, and any other documents incorporated or referenced herein, constitute the entire agreement between you and Net2Phone with respect to the Managed Services and supersede all prior or contemporaneous understandings regarding such subject matter. Nothing in these UMS Terms shall be deemed or construed to constitute or create employment, partnership, association, joint venture, agency, or fiduciary relationship between the parties hereto. The section titles in these UMS Terms are for convenience only and have no legal or contractual effect.  Any terms and conditions specified in any email from you or handwritten on a quote, order form, addendum or these UMS Terms, are void and have no legal effect.

37. This electronic document and any other electronic documents, policies, and guidelines incorporated herein will be: (1) deemed for all purposes to be a "writing" or "in writing," to comply with all statutory, contractual, and other legal requirements for a writing; (2) legally enforceable as a signed writing; and (3) deemed an "original" when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, or administrative proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.  

38. No terms or conditions contained in any purchase order, memorandum or other instrument issued by you and purporting to cover any products or services provided under these UMS Terms will be binding on the parties and any such order, memorandum or other instrument shall be null and void and shall have no legal force or effect.

39. Notwithstanding the termination of the Managed Services for any reason, the sections of these UMS Terms that by their nature should survive termination, will continue to apply.