Master Services Agreement

This Master Services Agreement (“MSA”) is entered into as of the effective date of the Customer Services Order (“CSO”) that this MSA is a part of between Smart City Telecommunications LLC, a Delaware limited liability company doing business as Smart City Telecom (“Smart City Telecom”), and Customer who shall be more fully described in the CSO (“Customer”). Smart City Telecom and Customer are sometimes referred to herein individually as a “Party” and jointly as the “Parties”.

Article 1. Definitions

1.1. “Affiliate” shall mean an entity that now or in the future, directly or indirectly controls, is controlled by, or is under common control with, a Party to the Agreement. For purposes of the foregoing, “control” shall mean the ownership of (i) greater than fifty percent (50%) of the voting power to elect the directors of the company, or (ii) greater than fifty percent (50%) of the ownership interest in the company.

1.2. “Agreement” shall mean the CSO along with this MSA, and as applicable, the Business Voice Services Schedule, Business Data Services Schedule, Space Lease Agreement, E911 Services Policy, E911 Data Collection Form, Numbering Policy, Privacy Policy, Acceptable Use Policy and Terms and Conditions located on Smart City Telecom’s website (https://www.smartcitytelecom.com/legal/), all of which are made a part hereof and incorporated herein by reference and which together constitute the Agreement between Customer and Smart City Telecom for the Services.

1.3. “CSO” shall mean the signed request(s) for Services submitted by Customer, which are hereby incorporated by reference and made a part hereof.

1.4. “Customer Premises” shall mean the Services Location(s) occupied by Customer or its end users to which Services are delivered as identified in the CSO.

1.5. “Excused Outage” shall mean any outage, unavailability, delay or other degradation of Services related to, associated with or caused by Smart City Telecom scheduled maintenance events, Customer actions or inactions, Customer provided power or equipment, any third party (excluding any third party directly involved in the operation and maintenance of the Smart City Telecom network but including, without limitation, Customer’s end users, third party network providers, traffic exchange points controlled by third parties, or any power, equipment or services provided by third parties), or a force majeure event as defined in Section 7.1.

1.6. “Facilities” shall mean any property owned, licensed or leased by Smart City Telecom or any of its Affiliates and used to deliver Services, including terminal and other equipment, conduit, fiber optic cable, optronics, wires, lines, ports, routers, switches, channel service units, data service units, cabinets, racks, private rooms and the like.

1.7. “Services” shall mean the Smart City Telecom Services identified on the CSO and, as applicable, in any applicable Services schedule(s).

1.8. “Services Activation Date” shall mean the date that the Services ordered by Customer have been installed by Smart City Telecom pursuant to the CSO, have been tested by Smart City Telecom and are functioning properly, and when billing commences.

1.9. “Services Term” shall mean the duration of time (measured starting on the Services Activation Date or some other mutually agreed upon date) for which Services are ordered, as specified in the CSO. At the end of the Services Term as set forth herein, the Agreement shall automatically continue thereafter on a month-to-month basis at the existing Services Term rates set forth in the applicable CSO until either Party provides thirty (30) days prior written notice to the other Party to terminate the Services. However, in the event Customer’s account is more than thirty (30) days past due for any undisputed amounts, this Agreement shall not be extended and/or the Services revised as the Customer may have requested and Smart City Telecom has agreed to provide until such time as all undisputed past due amounts have been paid by Customer in full to Smart City Telecom.

Article 2. Delivery of Services

2.1. Customer Services Order Submission. To order any Services, Customer will submit a CSO requesting Services. The CSO and its backup detail must include a description of the Services, the non-recurring charges and monthly recurring charges for Services, and the applicable Services Term.

2.2. Acceptance by Smart City Telecom. Upon receipt of a CSO, if Smart City Telecom determines (in its sole discretion) to accept the CSO, Smart City Telecom will provide Customer with a tentative Services Activation Date for the requested Services (or some portion of the Services). Notwithstanding anything in the Agreement or any CSO to the contrary, any Customer requested date for delivery of Services will not be effective unless and until confirmed by Smart City Telecom. Smart City Telecom will become obligated to deliver ordered Services only if Smart City Telecom has provided a Services Activation Date for the Services to Customer.

2.3. Credit Approval. Customer will provide Smart City Telecom with credit information as requested, and delivery of Services shall be subject to Smart City Telecom credit approval. Customer also authorizes Smart City Telecom to obtain any Customer credit information and/or Customer Proprietary Network Information necessary to provision the Services and to establish this Smart City Telecom Services account, and authorizes release of said information by any third parties to Smart City Telecom.

2.4. Customer Premises. Customer shall allow Smart City Telecom access to the Customer Premises to the extent reasonably determined by Smart City Telecom for the installation, inspection and scheduled or emergency maintenance of Facilities relating to the Services. Smart City Telecom shall notify Customer at least two (2) business days in advance of any regularly scheduled maintenance that will require access to the Customer Premises or that may result in a material interruption of Services. Customer will be responsible for providing and maintaining, at its own expense, the level of power, heating and air conditioning necessary to maintain the proper environment for the Facilities on the Customer Premises. In the event Customer fails to do so, Customer shall reimburse Smart City Telecom for the actual and reasonable cost of repairing or replacing any Facilities damaged or destroyed as a result of Customer’s failure. Customer will provide a safe place to work and both Customer and Smart City Telecom will comply with all laws and regulations regarding the working conditions on the Customer Premises. Smart City Telecom shall comply with Customer’s security and safety requirements for said premises if applicable and provided that Customer has notified Smart City Telecom in advance of such requirements.

2.5. Customer Move. If for any reason Customer relocates and requires their Services to be moved by Smart City Telecom, a Move Fee will be assessed to Customer. This one-time charge Move Fee shall be based on, but limited to, the services being moved and the distance of the move from the original Customer Services Location.

2.6. Site Survey. Customer agrees that the following actions will be taken in sequence to conduct a site survey: (i) Customer shall identify a person at the Customer Premises who is authorized to grant Smart City Telecom or its designee access for purposes of performing a prospective site survey (“Access Granting Personnel”); (ii) Customer shall inform the Access Granting Personnel that Smart City Telecom or its designee will be contacting them directly to coordinate a site survey; (iii) Smart City Telecom or its designee shall contact the Access Granting Personnel and coordinate the timing and other details of a prospective site survey with them; (iv) Smart City Telecom shall dispatch its designee to the site to conduct the site survey in accordance with the terms coordinated with the Access Granting Personnel; (v) if Smart City Telecom determines that the site is serviceable without any Extraordinary Setup Costs (e.g. inside wire drop), then Smart City Telecom shall proceed with the installation and activation of Services; (vi) if, however, Smart City Telecom determines that Extraordinary Setup Costs are necessary in order to render the site serviceable, then such costs, along with serviceability alternatives if available, will be communicated to Customer. Customer shall, at its option and in its sole discretion, do one of the following within three (3) business days of receipt of such communication from Smart City Telecom or be deemed to have accepted the Extraordinary Setup Costs: (a) accept responsibility for the Extraordinary Setup Costs and proceed with the Services order; (b) accept a proposed alternative serviceability option from Smart City Telecom; or (c) cancel the order without incurring any liability.

2.7. Inside Wiring. Customer acknowledges that Smart City Telecom may use existing wiring located within the Customer Premises (“Inside Wiring”). Customer represents and warrants that Customer owns or controls the Inside Wiring, and gives Smart City Telecom permission to use, alter, and remove equipment from such wiring. Customer agrees to indemnify Smart City Telecom from and against all claims by an owner, landlord, building manager, or other party in connection with installation, maintenance, repair, or provision of the Services.

If Customer does not own the Customer Premises or if the unit is part of a multi-tenant environment (e.g., office building, apartment building, condominium, private subdivision), Customer represents and warrants that it has obtained or will obtain permission from any necessary party—including, without limitation, the owner, landlord, or building manager—to allow Smart City Telecom and its subcontractors reasonable access to install, maintain, and repair the Services.

Installation and wiring will be provided by Smart City Telecom up to the building’s Services Delivery Point. Any inside wiring, or special construction required to extend the Services Delivery Point, is the responsibility of the Customer or the Customer’s low voltage contractor. In cases where Smart City Telecom or its subcontractors provide the inside wiring to extend the Services delivery location, Smart City Telecom will own said wiring and will be responsible for repair, maintenance and replacement. All existing Inside Wiring is the property of the Customer or of whomever owns the Customer Premises. Placement of Inside Wiring from the building’s Services Delivery Point shall be arranged by the Customer prior to the date of Smart City Telecom’s installation of the Services. Except in cases where Smart City Telecom or its contractor provides the inside wiring, any costs associated with Inside Wiring—or delays caused thereby—are the responsibility of the Customer. Accordingly, Customer is responsible for the repair, maintenance and replacement (including riser cable) of Customer-owned Inside Wiring.

2.8. Power. Smart City Telecom-owned equipment located on the Customer Premises requires electrical power from the Customer Premises to operate, which the Customer is responsible for providing. If there is an Optical Network Terminal located anywhere on the Customer Premises, the Customer is responsible for providing an uninterrupted power supply.

Smart City Telecom equipment located on the Customer Premises will not function in the event of a loss of Customer-provided power. This will disrupt Customer’s Internet Services, Voice Services as well as any additional services that use the Smart City Telecom connection for transport. Customer understands that E911 may not function if Voice Services are interrupted for any reason—including, without limitation, failure of Smart City Telecom equipment, a power outage, failure of Smart City Telecom’s network or Facilities, network congestion, or suspension or disconnection of Customer’s Services because of non-payment. Smart City Telecom will have no liability for loss of any Services in the event of interruption of Customer-provided power.

2.9. Smart City Telecom Facilities.

(A) Except as otherwise agreed, title to all Facilities shall remain with Smart City Telecom. Smart City Telecom will provide and maintain the Facilities in good working order. Customer shall not and shall use commercially reasonable efforts to avoid permitting others to rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any Facilities without the prior written consent of Smart City Telecom. The Facilities shall not be used for any purpose other than that for which Smart City Telecom provides them. Customer shall not take any action that causes the imposition of any lien or encumbrance on the Facilities. In no event will Smart City Telecom be liable to Customer or any other person for interruption of Services or for any other loss, cost or damage caused by or related to improper use or maintenance of the Facilities by Customer or any third party gaining access to the Facilities by Customer in violation of the Agreement, and Customer shall reimburse Smart City Telecom for any damages incurred as a result thereof. Customer agrees (and this agreement shall survive the expiration, termination or cancellation of any CSO) to allow Smart City Telecom to remove the Facilities from the Customer Premises:

(i) after termination, expiration or cancellation of the Services Term of any Services in connection with which the Facilities were used; or

(ii) for repair, replacement or otherwise as Smart City Telecom may determine is necessary or desirable, but Smart City Telecom will use reasonable efforts to minimize disruptions to the Services caused thereby.

(B) Return of Smart City Telecom Equipment. If Customer’s Services are terminated or canceled (for whatever reason), Customer agrees that Customer no longer has the right to keep or use any Smart City Telecom equipment and must promptly return the equipment to Smart City Telecom. Smart City Telecom equipment must be returned in the same condition as when received, ordinary wear and tear excepted. If Customer fails to return the equipment, Customer will pay Smart City Telecom the value of the equipment and any expenses incurred by Smart City Telecom in retrieving it. Failure of Smart City Telecom to remove the equipment does not mean that Smart City Telecom has abandoned it. Smart City Telecom may continue to charge Customer a monthly Services fee until any remaining equipment is returned, collected by Smart City Telecom or fully paid for by Customer. Customer acknowledges that costs of repair or replacement are subject to change and that other charges relating to the possession and use of the Smart City Telecom equipment may be increased at any time in accordance with applicable laws or regulations. Upon notice, Customer agrees to pay such charges or return the equipment in good working order.

(C) Damaged or Lost Smart City Telecom Equipment. If the Smart City Telecom equipment or other Facilities are damaged by the Customer or an agent of Customer, destroyed, lost or stolen while in Customer’s possession, Customer is responsible for the cost of repair or replacement of the equipment.

2.10. Customer-Provided Equipment. The Customer is responsible for any equipment or facilities required to complete the connection between the Services demarcation point and the Customer’s Local Area Network (“LAN”). Smart City Telecom shall not be responsible for the operation or maintenance of any Customer-provided communication equipment. Smart City Telecom undertakes no obligations and accepts no liability for the configuration, management, performance, intended use, compatibility or any other issue relating to Customer-provided Wi‑Fi, routers, LAN equipment or other Customer-provided voice equipment (i.e. PBX, key system, etc.) used for access to or the exchange of traffic in connection with the Services.

2.11. Scheduled Maintenance. Scheduled maintenance of the Smart City Telecom network will not normally result in Services interruption or outage. However, in the event such maintenance should require a Services interruption or outage, Smart City Telecom will exercise commercially reasonable efforts to (i) provide Customer with seven (7) days’ prior notice, (ii) work with Customer in good faith to minimize any disruption in Customer’s Services, and (iii) perform such maintenance during the hours of 12:00 a.m. (midnight) until 6:00 a.m. local time. Any scheduled maintenance of the network that impacts Services shall be considered an Excused Outage.

Article 3. Billing and Payment

3.1. Commencement of Billing. Billing shall commence on the applicable Services Activation Date, regardless of whether Customer has procured services from other carriers needed to operate the Services or is otherwise prepared to accept delivery of ordered Services.

3.2. Charges. The CSO will set forth the applicable non-recurring charges and monthly recurring charges for the Services. Unless otherwise expressly specified in the CSO, any non-recurring charges shall be invoiced by Smart City Telecom to Customer upon the Services Activation Date. However, in the event such Services require additional infrastructure, cabling, electronics or other materials in providing the Services, the CSO may include non-recurring charges payable by Customer in advance of the Services Activation Date as mutually agreed between the Parties. If Customer fails to pay such non-recurring charges within the time period specified in the CSO, Smart City Telecom may suspend installation (without liability, including but not limited to Services Level credits) until receipt, and thereafter may issue a new Services Activation Date. If Customer requests and Smart City Telecom approves any changes to the CSO or Services after acceptance, additional non-recurring charges and/or monthly recurring charges not otherwise set forth in the CSO may apply.

3.3. Payment of Invoices. Invoices are delivered monthly. Smart City Telecom bills in advance for Services to be provided during the upcoming month, except for usage-dependent charges which are billed in arrears. Billing for partial months is prorated based on a calendar month. Payment on all invoices is due fifteen (15) days after the invoice date. Unless otherwise specified, all payments shall be due and payable in U.S. Dollars. Past due amounts bear interest at a rate of 1.5% per month (or the highest rate allowed by law, whichever is less) from the date first due until paid in full. Customer may be required to reimburse Smart City Telecom for collection fees, attorney fees, court costs, etc., incurred in collecting undisputed and/or unpaid amounts.

3.4. Taxes and Fees. All charges for Services are net of Applicable Taxes (as defined below). Except for taxes based on Smart City Telecom’s net income, Customer will be responsible for all applicable taxes arising in any jurisdiction, including without limitation value added, consumption, sales, use, gross receipts, excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges imposed on, incident to, or based upon the provision, sale or use of the Services (collectively “Applicable Taxes”). If Customer is entitled to an exemption from any Applicable Taxes, Customer is responsible for presenting Smart City Telecom with a valid exemption certificate (in a form reasonably acceptable to Smart City Telecom). Smart City Telecom will apply any valid exemption certificate provided for Services billed to Customer only for the period following receipt of such certificate.

3.5. Regulatory and Legal Changes. In the event of any change in applicable law, regulation, decision, rule or order that materially increases the costs or other terms of delivering Services, Smart City Telecom and Customer will negotiate to reflect such cost increases. If the Parties are unable to agree on new rates within thirty (30) days after Smart City Telecom’s written notice, then (a) Smart City Telecom may pass the increased costs through to Customer, and (b) Customer may terminate the affected Services without termination liability by delivering written notice no later than thirty (30) days after the effective rate increase.

3.6. Disputed Invoices. If Customer reasonably disputes any portion of an invoice, Customer must pay the undisputed portion and submit written notice of the claim (in a form reasonably requested by Smart City Telecom) for the disputed amount. All claims must be submitted within thirty (30) days from the invoice date. Customer waives the right to dispute any charges not raised within such thirty (30)-day period. In the event the dispute is resolved against Customer, Customer shall pay the disputed amounts plus interest at the rate referenced in Section 3.3.

3.7. Termination Charges.

(A) Customer may cancel Services following Smart City Telecom’s acceptance of the applicable CSO and prior to the Services Activation Date upon written notice. In the event of cancellation or if delivery is terminated by Smart City Telecom due to an uncured default by Customer pursuant to Section 4.2, Customer shall pay a cancellation charge equal to the sum of:

(i) any third-party cancellation/termination charges related to installation and/or cancellation of Services;

(ii) the non-recurring charges (including any waived non-recurring charges at the time of the CSO) for the cancelled Services;

(iii) one (1) month’s monthly recurring charges for the cancelled Services;

(iv) all labor, materials and/or engineering costs incurred by Smart City Telecom; and

(v) any applicable fees, taxes and surcharges (the “Cancellation Fee”).

Customer’s right to cancel any particular Service under Section 3.7(A) shall expire upon Smart City Telecom’s delivery of a Services Activation Date for such Service.

(B) In addition to the right of cancellation under Section 3.7(A), Customer may terminate Services prior to the end of the Services Term upon thirty (30) days’ written notice. In the event that, after either the original Services Activation Date (or a mutually agreed delay) and prior to the end of the Services Term, Customer terminates Services or if delivery is terminated by Smart City Telecom due to an uncured default by Customer pursuant to Section 4.2, Customer shall pay a termination charge equal to the sum of:

(i) all unpaid amounts for Services provided through the termination date;

(ii) any third-party cancellation/termination charges related to installation and/or termination of Services;

(iii) the non-recurring charges (including any waived non-recurring charges at the time of the CSO) for the cancelled Services, if not already paid;

(iv) all labor, material and/or engineering costs incurred by Smart City Telecom;

(v) any applicable fees, taxes and surcharges; and

(vi) if Customer terminates the Agreement without cause, Customer shall pay all accrued but unpaid charges through the termination date and a charge equal to the total number of months remaining in the Services Term (or any renewal period) multiplied by the monthly recurring charges for the Services as set forth in the CSO (the “Early Termination Fee”).

(C) The Parties acknowledge that the cancellation or termination charges set forth in this Section 3.7 are a genuine estimate of the actual damages that Smart City Telecom will suffer and are not a penalty.

3.8. Fraudulent Use of Services. Customer is responsible for all charges attributable to Customer incurred in connection with the Services, even if such charges result from fraudulent or unauthorized use of Services; however, Customer shall not be responsible for fraudulent or unauthorized use by Smart City Telecom or its employees.

Article 4. Term and Termination

4.1. Term.

(A) The Agreement shall become effective on the Services Activation Date and shall continue for the Services Term identified in the CSO, unless terminated early as provided herein. At the end of the Services Term set forth in the CSO, the Agreement shall automatically renew on a month-to-month basis at the then existing Services Term rates until either Party provides thirty (30) days’ prior written notice of its intent to terminate or the Parties enter into a new Agreement.

(B) Except as otherwise provided herein, Smart City Telecom shall deliver the Services for the entire Services Term, and Customer shall pay all charges for delivery thereof through the end of the Services Term. To the extent that the Services Term for any Service extends beyond the Agreement Term, the Agreement shall remain in full force and effect for such Service until the expiration or termination of that Services Term.

(C) In the event that providing any of the Services or the Agreement itself becomes economically unreasonable to Smart City Telecom or is otherwise deemed not in its best interest, Smart City Telecom may terminate the Services or the Agreement upon thirty (30) days’ written notice to Customer. Customer shall not be liable for any remaining Services Term.

4.2. Default By Customer. If (i) Customer makes a general assignment for the benefit of its creditors, files a voluntary bankruptcy petition or any petition or answer seeking reorganization, arrangement, adjustment, composition, liquidation, dissolution or similar relief; (ii) an involuntary bankruptcy petition or other insolvency protection against Customer is filed and not dismissed within sixty (60) days; (iii) Customer fails to make any payment when due and such failure continues for five (5) business days after written notice from Smart City Telecom; (iv) Customer fails to observe and perform any material term of the Agreement (other than payment terms) and such failure continues for thirty (30) days after written notice; or (v) Customer’s use of Services materially exceeds its credit limit, unless within one (1) business day’s written notice Customer provides adequate security for payment, then Smart City Telecom may: (A) terminate the Agreement and any CSO, in whole or in part, with no further duties or obligations, and/or (B) subject to Section 5.1, pursue any remedies under the Agreement, at law or in equity.

4.3. Default By Smart City Telecom. If (i) Smart City Telecom makes a general assignment for the benefit of its creditors, files a voluntary bankruptcy petition or any petition or answer seeking reorganization, arrangement, adjustment, composition, liquidation, dissolution or similar relief; (ii) an involuntary bankruptcy petition or other insolvency protection against Smart City Telecom is filed and not dismissed within sixty (60) days; or (iii) Smart City Telecom fails to observe and perform any material term of the Agreement (other than as provided in Section 4.4 and Article 6) and such failure continues for thirty (30) days after written notice from Customer, then Customer may: (A) terminate the Agreement and/or any CSO, in whole or in part, with no further obligations, and/or (B) subject to Section 5.1, pursue any remedies available under the Agreement, at law or in equity.

4.4. Other Rights of Termination.

(A) If Smart City Telecom’s installation of Services is delayed for more than thirty (30) business days beyond the established Services Activation Date for reasons other than an Excused Outage, Customer may terminate and discontinue the affected Services upon written notice to Smart City Telecom and without payment of any applicable termination charge. This Section 4.4(A) shall not apply to any Services where Smart City Telecom (or a third-party contractor engaged by Smart City Telecom) is constructing Facilities at the Customer Premises necessary for delivery of the Services.

(B) Customer may terminate and discontinue ordered Services prior to the end of the applicable Services Term without payment of any termination charge if the purpose is to convert Customer to similarly priced or upgraded Services.

Article 5. Liabilities and Indemnification

5.1. No Special Damages. Notwithstanding any other provision (other than Section 5.3), neither Party shall be liable for any indirect, incidental, special, consequential, exemplary or punitive damages (including lost profits, lost revenues or the cost of purchasing replacement services) arising out of performance or nonperformance under the Agreement or any CSO. Nothing in the Agreement shall limit liability for personal injury or death resulting from a Party’s negligence.

5.2. Disclaimer of Warranties. Smart City Telecom makes no warranties or representations, express or implied, either in fact or by law, including warranties of merchantability or fitness for a particular use.

5.3. Indemnification. Each Party shall indemnify the other from any claims by third parties and related expenses (including legal fees and court costs) arising from damage to tangible property, personal injury, or death caused by that Party’s negligence or willful misconduct.

Article 6. Services Interruptions

6.1. Services Interruptions. To report issues related to Services performance, Customer may contact Smart City Telecom’s Network Operations Center (“NOC”) by calling (407) 828-6700, or by email at support@smartcity.com. In order for Smart City Telecom to investigate any reported issues, Customer agrees to provide supporting information as reasonably requested, which may include circuit ID, circuit end-point(s), IP address(es), originating phone number and terminating phone number.

6.2. Services Interruption Credits. To request a credit for a Services interruption, Customer must contact Smart City Telecom Customer Service or submit a written request (in a form reasonably requested by Smart City Telecom) pursuant to Section 7.4 within thirty (30) days of the end of the month for which the credit is requested. Contact Customer Service at (407) 828-6700 or via email at customerservice@smartcitytelecom.com. In no event shall the total monthly credits exceed the non-recurring and monthly recurring charges invoiced for the affected Services for that month.

Article 7. General Terms

7.1. Force Majeure. If performance under the Agreement or any obligation hereunder is prevented, restricted, or interfered with by reason of (a) earthquakes, fire, explosion, breakdown of plant, epidemic, hailstorm, hurricane, lightning, tornado, cyclone, flood, or power failure or restrictions imposed by an electric utility; (b) war, revolution, pandemic, civil commotion, labor disputes, strikes, lockouts, acts of public enemies, blockade, or embargo; or (c) any other circumstances beyond the reasonable control of the affected Party, then upon prompt written notice, the affected Party shall be excused from performance on a day-to-day basis until the cause is remedied.

7.2. Assignment and Resale. Customer may not assign its rights or obligations under the Agreement or any CSO without the express prior written consent of Smart City Telecom, which will not be unreasonably withheld. The Agreement shall apply to any permitted assignees. Customer may NOT resell the Services to third party end users.

7.3. Affiliates.

(A) Services may be provided to Customer pursuant to the Agreement by an Affiliate of Smart City Telecom. If a CSO requires delivery of Services in a jurisdiction that mandates additional terms, the Parties shall incorporate such terms into the CSO while preserving the terms of the Agreement. Notwithstanding Services provided by an Affiliate, Smart City Telecom remains responsible for delivery and performance in accordance with the Agreement.

(B) Notwithstanding anything to the contrary, Smart City Telecom may provide a copy of the Agreement to its Affiliate for purposes of this Section 7.3 without notice or consent from Customer.

7.4. Notices. Notices hereunder shall be in writing and deemed received if delivered personally, or when sent via facsimile, pre-paid overnight courier, email (if an email address is provided), or by U.S. Postal Service (or other applicable service) to the following addresses:

(A) IF TO Smart City Telecom:

For billing inquiries/disputes, requests for Services Level credits, and/or requests for disconnection of Services (other than for default):

Smart City Telecom
3100 Bonnet Creek Road (overnight only)
Attn: Customer Service
Telephone: (407)-828-6700
Facsimile: (407) 828-6701
Email: customerservice@smartcitytelecom.com

For all other notices, to the same address above:
Attn: Director – Legal Affairs

(B) IF TO CUSTOMER:

The Customer address in the CSO.

(C) Such other address as the Party to whom notice is to be given may have furnished in writing.

All such notices shall be deemed given on (i) the date delivered if delivered personally, (ii) the business day after dispatch if sent by overnight courier, (iii) the third business day after posting if sent by U.S. Postal Service (or other applicable service), or (iv) the date of transmission if sent by facsimile or email (or the next business day if transmitted on a weekend or holiday). Notwithstanding the foregoing, any notices delivered by Smart City Telecom to Customer in the normal course of providing Services shall be deemed properly given.

7.5. Contents of Communications. Smart City Telecom shall have no liability for the content of any communications transmitted via the Services, and Customer shall defend and indemnify Smart City Telecom from any claims (including those by governmental entities) related to such content or to Customer’s use of the Services. Smart City Telecom provides only Internet access and does not control the information, services, opinions, or other content available online. Customer agrees not to claim any liability against Smart City Telecom relating to online content or any products, services, or software ordered through the Internet.

7.6. Customer Data. Customer hereby grants Smart City Telecom a non-exclusive, non-transferable license (except in connection with an assignment of the Agreement) to copy, store, record, transmit, display, view, print, and use Customer Data solely as necessary to provide the Services. Except as expressly provided herein, no right, title, interest, or license in the Customer Data is granted, and Customer reserves all rights in and to the Customer Data. Notwithstanding the foregoing, Smart City Telecom may disclose Customer Data to third parties as required by law or to deliver the Services.

7.7. Data Protection.

(A) Data Privacy. Smart City Telecom respects Customer’s privacy and will use the information provided or collected solely in accordance with the Privacy Policy available at www.smartcitytelecom.com/legal/privacy-policy, which is incorporated by reference. Smart City Telecom may update the Privacy Policy from time to time. Please refer to the “Effective Date” at the top of the Privacy Policy for the latest revision. Continued use of the Services following changes constitutes acceptance of the revised Privacy Policy.

(B) Data Security. Smart City Telecom will take commercially reasonable precautions—including technical measures (e.g. firewalls and encryption), administrative, and physical measures—to safeguard Customer’s account, account data, and content from unauthorized use, disclosure, or modification. Customer is responsible for protecting all endpoints using industry-standard security measures, keeping all user identifications and passwords secure, monitoring use for unlawful or fraudulent activity, and notifying Smart City Telecom immediately if any unauthorized use is suspected. Smart City Telecom shall not be liable for any charges resulting from unauthorized use of Customer’s account.

(C) Software Changes. Smart City Telecom may occasionally push software updates or patches directly to Customer’s device(s) for installation. Customer must promptly implement all fixes, updates, upgrades, and replacements of both Smart City Telecom and third-party software. Smart City Telecom will not be liable for any inoperability or failures of the Services due to Customer’s failure to implement such changes.

7.8. Electronic Recording. Customer acknowledges that federal and state laws govern the electronic recording of telephone conversations and that Smart City Telecom is not liable for any illegal use of the Services. Customer is responsible for reviewing its own circumstances to determine whether electronic recordings are legal under applicable law and for providing required notifications. Smart City Telecom is not responsible for any misinterpretation or misuse of recordings, and Customer shall indemnify Smart City Telecom and its Affiliates for any related claims. Smart City Telecom may, at its discretion, record calls for quality control purposes.

7.9. Publicity. Neither Party may use the other Party’s or its Affiliates’ trademarks, service marks, or trade names, or refer to the other Party in any marketing, promotional, or advertising materials without written consent. Neither Party shall issue any publication or press release regarding the contractual relationship except as required by law or agreed in writing.

7.10. Confidentiality and Non-Disclosure. The Parties agree that it may be necessary to exchange confidential information during the term of this Agreement. Except as required by law, the Parties agree not to disclose such confidential information to any third party except to their directors, officers, employees, agents, and advisors (including legal, financial, and accounting advisors) as needed to effectuate this Agreement. This obligation shall survive termination of the Agreement.

7.11. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to any conflict of law provisions. Each Party waives its right to a trial by jury for any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments, or appendices.

7.12. Amendment. The Agreement may only be modified or supplemented by a written instrument executed by a duly authorized representative of each Party. Handwritten changes shall be void unless acknowledged in writing by both Parties.

7.13. Order of Precedence. In the event of any conflict or inconsistency, the order of precedence shall be: (1) the MSA, (2) the CSO, (3) the applicable online Terms and Conditions, (4) the applicable Business Voice and/or Data Services Schedule, and (5) the Space Lease Agreement, if applicable.

7.14. Survival. The provisions of Articles 3, 5, 6 and 7 and any other provisions meant to survive termination shall remain in effect after termination of the Agreement.

7.15. Relationship of the Parties. The relationship between Customer and Smart City Telecom is not that of partners, agents, or joint venturers, and nothing in this Agreement shall be construed as creating a partnership or agency relationship between the Parties for any purpose, including for federal income tax purposes.

7.16. No Waiver. Failure by either Party to enforce any rights hereunder shall not constitute a waiver of those rights.

7.17. Severability. If any provision of this Agreement is declared invalid or unenforceable, it shall be ineffective only to the extent of such invalidity without affecting the remaining provisions. In the event a material provision is declared invalid, the Parties shall negotiate in good faith to amend the Agreement to preserve the original benefits and burdens as closely as possible.

7.18. Third Party Beneficiaries. This Agreement shall bind and inure to the benefit of the Parties and their respective successors and assigns, and nothing herein is intended to confer any right, benefit, or remedy on any third party.

7.19. Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument.

Last Updated: 2/16/2024