Ytel® SIP Trunking Service Agreement

This is an agreement (“Agreement”) for SIP Trunking Services and related services and/or features (Services”) between you and Ytel, Inc.(“Ytel”). This Agreement and any Order Form (including any amendment thereto) explain the terms and conditions upon which we agree to provide you Service and you agree to accept these terms and conditions with the Service. If there is any conflict between this Agreement and an Order Form, this Agreement shall control. Services offered by Ytel to Customer for purchase are described in this Agreement and the Service Orders executed by both parties. The Services may consist of services provided directly by Ytel and also of services procured by Ytel from third party suppliers. The words “we”, “us”, “our” or “Ytel” refers to Ytel. The words “you”, “your”, or “Customer” refers to the entity or person who is completing this Agreement. You represent that you have been authorized to accept this Agreement on behalf of your Company. We reserve the right to change these terms and conditions from time to time. Posting of the updated Service Agreement will constitute notice to you of any such changes. Changes will be effective upon posting. You remain responsible for regularly reviewing these terms and conditions. Your continued use of the Services after the date of such changes constitutes your acceptance of and agreement to such changes.

1. Emergency Services – NOT PROVIDED

Ytel does not provide emergency services or support for emergency services under this Agreement.  Customer should provision all necessary services and technology necessary as required to support 911 or E911 services, and Ytel disclaims all responsibility for such services under this Agreement.

2. Term.

The initial term is subject to that which is designated on the Order Form. The initial term for the Services chosen by Customer shall commence on the date that Ytel makes the Services available (“Effective Date”). Customer’s obligation to pay for all Services shall commence on the Effective Date. Upon the expiration of any initial or subsequent term, the term will automatically renew for succeeding terms of one month increments at Ytel’s then current rates unless a party provides thirty (30) days written notice of termination. Each service Order placed under the Order Form and this Agreement shall have its own terms and this Agreement shall continue to govern the parties’ duties and rights with respect to such Orders until the expiration of its term or any succeeding term or unless the Service Order is terminated as permitted by this Agreement. You are purchasing the Service for the full term, meaning that if you attempt to disconnect Service prior to the end of the applicable term or Ytel terminates your Service due to your breach of this Agreement or any Service Order, you will be responsible for all charges relating to the then-current term, including unbilled charges,  all installation costs, a disconnection fee, if applicable, and the monthly charges for all of the remaining months in the term, all of which will immediately become due and payable. If you cancel your service prior to the Effective Date, you will be responsible to pay a cancellation recovery fee, all installation costs and any disconnection fee, if applicable.

3. Ordering Service.

a. Service Schedules and Service Orders. All Services shall be ordered on Ytel’s standard Order Form(s) in effect at the time of ordering. By submitting any Service Order, Customer represents and warrants that the information provided by Customer on the Order Forms is complete, true, and accurate to the best of Customer’s knowledge and that the Service Order Form contains no misleading statements or omissions. Ytel may accept or reject any Service Order submitted by Customer in its sole discretion.

b. Customer Changes to Order Form or service. Any terms or conditions contained in an Order Form submitted by Customer that conflict with the terms and conditions in this Agreement are hereby objected to by Ytel and shall not constitute part of the agreement unless explicitly accepted by Ytel in writing. No action by Ytel (including, without limitation, provision of Services to Customer pursuant to such Service Order) shall be construed as binding or estopping Ytel with respect to such terms or conditions.

Charges and Rate.

a. Charges for Service. All charges for Services shall be those in effect as of the date that Ytel accepts the Service Order Form depending on the plan that you select. All charges, minimums, fees and restrictions of the plan you select are stated on your Service Order Form. You agree that you will be charged on a per minute basis for all calls to Alaska, Hawaii and International destinations at our current rates which are subject to change immediately and without notice to you. Please call us for our current Extended Domestic and International calling rates. You will be charged the per minute charge listed on your Service Order Form for all domestic long distance minutes which are subject to change upon five (5) days written notice to you.  The applicable continental U.S. long distance interstate rate is determined based upon the rate listed in the Order Form. Domestic intrastate rates, as applicable, are per state and are for state-wide termination within the same state. Domestic rates set forth in the Service Order Form or Attachments are shown in terms of full minutes and are billed in six (6) second increments with an initial six (6) second increment. The monthly charges for service do not include taxes, access or access related charges or rates for Extended Domestic or International calling. International rates are billed in six (60) second increments with an initial thirty (60) second increment. All International and Extended Domestic rates are subject to change immediately and without notice to Customer. Service availability is subject to the availability of facilities to and in the particular countries.  Ytel reserves the right to raise Customer’s rates or terminate this Agreement upon thirty Ytel’s Service (30) days’ notice if Ytel’s underlying carrier raises Ytel’s rates or terminates.

b. Charge and Rate Conditions. Ytel reserves the right, at any time upon thirty (30) days’ notice, to: (i) pass through to Customer, all or a portion of, any charges or surcharges, directly or indirectly, related to the action of any federal, state or governmental agency, or (ii) modify the rates, including any rate guarantees, and/or other terms and conditions to reflect the impact of such surcharges. Ytel may adjust its rates or charges, or impose additional rates and charges, in order to recover amounts it may be required by governmental or quasi-governmental authorities to collect from, or pay to others, to support statutory or regulatory programs during the course of the Term.

c. Taxes. All charges for Service are net of Applicable Taxes (as defined below). Except for taxes based on Ytel’s net income, Customer will be responsible for all applicable taxes that arise 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, however designated, imposed on, incident to, or based upon the provision, sale or use of the Services (collectively “Applicable Taxes”).

d. Unauthorized Use. Customer expressly acknowledges and agrees that it shall make payment in full to Ytel for all Services provided by Ytel pursuant to this Agreement and properly billed to Customer, whether authorized or not. Ytel reserves the right, but is not required, to take any and all action it deems appropriate to prevent or terminate any fraud, illegality, or abuse in connection with the Services.

e. Billing Period. Ytel will bill Customer for Monthly Recurring Charges in advance and for usage based Services in arrears on a monthly basis except for charges for installation and other non-recurring charges that Customer shall pay in advance of any Service being provisioned by Ytel. On the first billing for Monthly Recurring Charges, Ytel will prorate the billing from the Effective Date in addition to one month in advance.  Ytel, in its sole discretion, may “top up” the account if Customer exceeds it pre-paid monthly threshold at the amount agreed to in the Order Form, so as to take the unbilled balance down to $0.00.

f. Billing. For each billing period, Ytel will send to Customer via email a notice that Ytel has prepared Customer’s invoice and that Customer may log on to Ytel’s web based Customer Portal at to http://support.ytel.com/  view the invoice.

g. Payment. All undisputed amounts stated on each invoice are due and payable in U.S. dollars within twenty (20) days of the date on which Ytel sends the email notifying Customer that Customer’s invoice is available (the “Due Date”). Customer’s payment must be received on or before the Due Date in order for it not to be considered late. Restrictive endorsements or statements on checks accepted by Ytel will not be binding upon Ytel. Customer shall pay a “Returned Check Fee” of thirty dollars ($30.00) for any check returned for insufficient funds. If payment in full of undisputed amounts is not received on or before the Due Date, Customer will be considered to have breached this Agreement and Ytel shall have the right, after three (3) business days’ notice, to suspend or terminate Service and/or in Ytel’s sole discretion, draw upon any security held by Ytel.

h. Billing Disputes. Customer shall submit all disputes to Ytel within thirty (30) days of the date of the invoice in question. If Customer does not submit its dispute before the end of the thirty (30) day period, then Customer shall be deemed to have waived the right to dispute the invoice. Customer will submit all disputes via a written statement containing reasonably sufficient detail together with supporting documentation. Both parties will use good faith efforts to resolve the dispute within thirty (30) days from the Due Date of the invoice in question. If, at the end of the thirty (30) day period, the dispute is not resolved, the parties agree to immediately commence binding arbitration in accordance with Section 13e of this Agreement. Whether the dispute is resolved by mutual agreement or arbitration, the disputed amount shall be due or credited on the next invoice after final resolution of said dispute.

i. Late Payment. If Customer fails to remit payment of all undisputed amounts by the Due Date, Ytel, in addition to other remedies available to it under this Agreement or at law, may charge Customer a late fee of the lesser of 1.5% per month or the maximum fee allowed by law of the unpaid balance which shall accrue from the Due Date of the invoice.

j. Adjustments. Ytel may make billing adjustments for Services for one hundred and eighty (180) days after the date of the invoice for Services provided by Ytel or for the greater of one hundred and eighty (180) days or any period allowed by law, government rule or regulation, or contract.

k. Local Number Porting. You may elect to port an existing Telephone Number (“TN”) to Ytel for use with the Service. Ytel will support all valid requests and will cooperate with you to port any TNs in accordance with Ytel’s standard operating procedures. You are responsible for presenting to Ytel all necessary and accurate Calling Service Records (“CSRs”) in a form acceptable to Ytel in its sole discretion. You hereby represent and warrant to Ytel that you have all necessary rights and authority necessary to port any TNs and you hereby agree to indemnify, defend, and hold harmless Ytel, its Affiliates, and their officers, directors, employees and agents from and against any third party claim related to or arising out of any porting. You are liable for all charges for the Term, regardless of Ytel’s ability to port Customer’s existing TNs.  If the porting of your TN has to be rescheduled you will be charged seventy-five dollars ($75.00).

l. Short Call Duration Charge. Ytel reserves the right to charge all short duration calls (i.e. calls equal to or under six (6) seconds in length) a minimum of one-cent ($0.01) per answered call if Ytel determines that Customer has excessive quantities (i.e. more than 10% of Customer’s total calls) of such short duration.

m. NonRBOC Charge. If during Customer’s billing period, Customer’s domestic long distance traffic originates or terminates at a location not listed on Ytel’s OCN List found at www.Ytel.com in an amount that exceeds Ytel’s average percentage of origination or termination traffic for the billing period, Ytel reserves the right to assess a four-cent ($.04) per minute surcharge on all such excessive Customer originating and terminating minutes. Customer agrees to pay any such adjusted charges.

Credit and Assurance of Payment.

Maintenance of acceptable credit and adequate assurance of payment, both as determined by Ytel in its discretion, are conditions for the commencement and continuation of provision of the Services by Ytel. By signing this Agreement, you permit Ytel to complete a credit check on you before the commencement of Services and during the term of this Agreement.  If at any time Ytel, in its sole discretion, believes that Customer presents an undue risk of nonpayment, then Ytel may require a form of security for payment. Failure of Customer to provide a form of security requested by Ytel within two (2) business days of Ytel’s request shall be a material breach of Customer’s obligations under this Agreement and shall entitle Ytel to all remedies Ytel would have for nonpayment of an undisputed amount due.

Customer Warranties.

a. Resale of Services. Subject to written approval by Ytel, Customer may resell any Services purchased hereunder. Customer acknowledges that all Services purchased pursuant to this Agreement are for retail purposes only and as such will be subject to taxes, fees, and assessments based on Customer’s use as a retail or wholesale end user.

b. No Mass Call Events.  Customer represents and warrants that Customer shall not use the Services pursuant to this Agreement:

i. To provide any mass call events or voice content related services including, without limitation, chat lines or party lines.

ii. In conjunction with the use of mass communications equipment of any kind including but not limited to computers.

iii. In conjunction with a call center, or use of the Service for call back, call sell, fax blasting, predictive dialing, telemarketing, debit card services or any other high volume applications.

c. Acceptable Use Policy.

Customer shall use the Services for lawful purposes and to conduct business. Customer is responsible for adhering to Ytel’s Acceptable Use Policy (“AUP”) while using the Service, the terms of which are made available for viewing over the Internet at  www.Ytel.com and are incorporated by reference herein. Customer shall assure that its employees, agents, contractors, licensors, customers and suppliers also abide by Ytel’s AUP. Customer agrees to defend, indemnify and hold harmless Ytel, its affiliates, and contractors from any and all liabilities, costs and expense, including reasonable attorneys’ fees, arising from or related to use of the Service by Customer or Customer’s Users. Any violation of the AUP or conduct that Ytel, in its reasonable discretion, believes may subject Ytel to civil or criminal litigation or liability, charges and/or damages will be considered to be a breach of this Agreement and for which Ytel may suspend service as outlined in this Agreement.  If Ytel suspends the Service pursuant to this Section, Ytel may require a reinstatement fee in order to resume Service.  Notwithstanding the foregoing, Customer warrants that the traffic will be of a conversational nature with at least a 60-second average call duration and 80% Answer Seizure Rate.

d. Security Measures.

Customer shall be solely responsible for establishing and maintaining adequate security measures including but not limited to maintaining codes, passwords, encryption or other features necessary to restrict access to Customer’s computers, network, servers, or other equipment used by the Services.

f. Travel and Use of Service and Equipment Outside of the United States.

Ytel offers and supports services only in the United States and certain other countries. The Service is designed to work generally with unencumbered high-speed internet connections. If the high-speed internet connection Customer is using is not within a Ytel service area, and/or Customer’s ISP or broadband provider places restrictions on the usage of the Service, Ytel does not represent or warrant that use of the Service by Customer is permitted by such other jurisdiction or by any ISP or broadband provider. Customer is solely responsible for any violations of local laws and regulations or violations of ISP and broadband provider terms of service resulting from such use.

g. Breach of Customer Warranties.

Any breach of any of Customer’s warranties pursuant to this section 6 of this Agreement will constitute a material breach of this Agreement and Ytel may suspend or terminate the Service immediately and without notice. If Customer breaches any of its warranties, Customer will be solely liable for and will indemnify, defend and hold Ytel and its respective officers, directors, employees, contractors and agent harmless from all claims, demands, costs, damages, losses, liabilities and expenses of any nature arising from such breach, including indirect, special, incidental, consequential, punitive or reliance damages and any costs including attorneys’ fees associated with enforcing any of these provisions.

Number Transfer on Termination.

Upon termination of the Services, Ytel agrees to release Customer’s new service provider the telephone number(s) that Customer used in connection with the Service if Customer’s: (1) New service provider is able to accept such number(s); (2) Account has been properly terminated; (3) Account is completely current, including payment for any Early Termination Fees; (4) Equipment has been returned in good order; and (5) Transfer was requested upon terminating its account.

Hosting with Technical Support and Maintenance.

    

If Customer desires for Ytel to provide hosting of Customer’s equipment as well as technical support and maintenance, then the following applies:

a. Ytel shall host Customer’s equipment in an identified space as designated on an accepted Service Order (“Space”) during the term of this Agreement.

i. Ytel retains the right to access the Space at any time for any legitimate business purpose.

ii. Customer shall be permitted to use the Space only for placement of Customer’s equipment. Customer may not access the Space without Ytel’s consent and then subject to any and all rules, regulations and access requirements imposed by Ytel governing such access.

iii. Ytel shall install Customer’s equipment and maintain the Space. Customer acknowledges that it retains the risk of loss for, loss of (including, without limitation, loss of use), or damage to, Customer’s equipment located in the Space. Customer further acknowledges that Ytel’s insurance  policies do not provide coverage for Customer’s equipment located in the Space. Ytel shall have no liability for any damage whatsoever to Customer’s equipment.  If and to the extent that Ytel’s underlying leases so require (but only if they so require) Customer hereby agrees to release Ytel’s landlord (and its agents, subcontractors and employees) from all liability relating to Customer’s equipment’s occupancy of the Space.

iv. Ytel shall have the right to terminate the hosting in the event that: 1) Ytel’s rights to use the Space terminates or expires for any reason or 2) Customer is in default under this Agreement. Within two (2) days following the expiration or termination of the term of this Agreement or hosting, Customer shall collect Customer’s equipment from Ytel unless Customer intends to return Customer’s equipment pursuant to section 6 above.  In the event that Customer fails to collect Customer’s equipment when required within such two (2) day period, Ytel may disconnect, remove and dispose of Customer’s equipment without prior notice. Customer shall be responsible for any costs and expenses incurred by Ytel, or its agent, representative or contractor, resulting from disconnection, removal, disposal and storage of Customer’s equipment. Ytel shall not be obligated to release the equipment to Customer unless Customer has paid all such costs and expenses and all other charges due and owing by Customer to Ytel under the Agreement. Ytel shall not be liable for any loss or damage incurred by Customer arising out of Ytel’s disconnection, removal, storage or disposal of Customer’s equipment.

b. Ytel shall provide maintenance and technical support for Customer’s equipment located in the Space.

i. Ytel shall provide on-site maintenance services and diagnose Customer problems using reasonable efforts to provide solutions to Customer during the term of this Agreement.

ii. Maintenance and technical support will be provided to Customer on an as needed basis. Customer shall pay for maintenance and technical support at an hourly rate or monthly rate as designated on an accepted Service Order. Any replacement materials or equipment will be supplied by Ytel and invoiced on the next Customer invoice. Customer shall also pay for all of Ytel’s travel time and expenses which will be invoiced on the next Customer invoice.

iii. The Parties agree to keep each other informed regarding any issues with Customer’s equipment and Services and agree to assist each other in investigating and resolving any such issues.

iv.  Customer shall notify Ytel of any events affecting Customer’s business that may hinder Ytel’s ability to provide maintenance services.

v. Maintenance and technical support will be provided between the hours of 8:00 a.m. and 5:00 p.m. EST Monday through Friday. Any maintenance and support needed on hours and days not listed above will only be provided on an emergency basis.  If Customer is billed for maintenance and support on an hourly basis, any emergency support provided will be billed at a higher rate. Ytel will use commercially reasonable efforts to begin maintenance and technical support within twenty-four (24) hours of receiving a request from Customer.

Limitation of Liability; Disclaimer of Warranties.

IN THE EVENT OF ANY BREACH OF THIS AGREEMENT OR ANY FAILURE OF THE SERVICES WHATSOEVER, NEITHER YTEL NOR ANY OF YTEL’S SUPPLIERS SHALL BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY  DIRECT,  INDIRECT,  CONSEQUENTIAL, SPECIAL, ACTUAL, INCIDENTAL, PUNITIVE OR ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, EVEN IF YTEL OR THE SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YTEL MAKES NO WARRANTY WITH RESPECT TO THE SERVICE, EQUIPMENT OR THE SERVICE OR EQUIPMENT’S PERFORMANCE UNDER THIS AGREEMENT. YTEL DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTY IS MADE OR PASSED ON WITH RESPECT TO ANY THIRD PARTY SERVICE OR EQUIPMENT.

PUBLISHED DIRECTORY LIABILITY. YTEL IS NOT LIABLE FOR DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, ACTUAL, INCIDENTAL, PUNITIVE OR ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, AS A RESULT OF (I) ANY ACT, OMISSION OR FAILURE TO LIST CUSTOMER IN CONNECTION WITH LISTING CUSTOMER’S INFORMATION IN ANY PUBLISHED DIRECTORY; (II) ANY ERRORS OR OMISSIONS IN CUSTOMER’S INFORMATION LISTED IN ANY PUBLISHED DIRECTORY (CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY OF SUCH INFORMATION); AND (III) ANY ACT, OMISSION OR FAILURE TO PROVIDE CUSTOMER A CERTAIN VANITY OR TOLL-FREE NUMBER – EVEN IF PNG HAS INFORMED CUSTOMER THAT THE DESIRED NUMBER IS AVAILABLE.

YTEL DISCLAIMER FOR CONTENT. USE OF YTEL’S VOICE SERVICE IS SOLELY AT CUSTOMER’S OWN RISK. YTEL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT PARTICULAR PURPOSE AND NON-INFRINGEMENT. YTEL MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT IT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTER SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. YTEL MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM YTEL OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

SECURITY AND OTHER ALARM SYSTEMS. THE SERVICE MAY NOT BE COMPATIBLE WITH CUSTOMER’S SECURITY AND  FIRE ALARM SYSTEMS. YTEL STRONGLY RECOMENDS THAT CUSTOMER MAINTAINS A TELEPHONE CONNECTION THROUGH CUSTOMER’S LOCAL EXCHANGE CARRIER IN ORDER TO USE ANY ALARM MONITORING FUNCTIONS. YOU ARE RESPONSIBLE FOR CONTACTING THE ALARM MONITORING COMPANY REGARDING YOUR ALARM SERVICE. YOU SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS YTEL, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH THE SERVICE, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY RELATING TO THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, INCLUDING FAILURE OR PROBLEMS WITH CUSTOMER’S SECURITY AND FIRE ALARM SYSTEMS.

Indemnification.

Customer will defend, indemnify and hold harmless Ytel and its respective officers, directors, employees, contractors and agents against and from any loss, debt, liability, damage, obligation, claim, demand, judgment or settlement including without limitation, attorneys’ fees and all reasonable costs and expenses of litigation arising out of, resulting from, or based upon, any complaint, claim, action, proceeding or suit to the extent that such claim is from or in any way connected with any claims from Customer’s use of the Services or Equipment including any unauthorized or illegal provision or use, any infringement by Customer or someone else using the Service with Customer’s computer of any intellectual property or other proprietary right of any person or entity or from the violation of Ytel’s AUP.

Miscellaneous.

a. Force Majeure. Neither party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such party’s reasonable control. In the event Ytel is unable to deliver Service as a result of force majeure, Customer shall not be obligated to pay Ytel for the affected Service for so long as Ytel is unable to deliver otherwise Force Majeure does not apply to Customer nonpayment.

b. Proprietary Information. Each party agrees to maintain in strict confidence the Agreement, including pricing, contained in this Agreement or in any Service Order and all plans, designs, drawings, trade secrets, business and other proprietary information of the other party which is disclosed pursuant to this Agreement. Neither party shall disclose to any third party such confidential information without the express written consent of the other party. No obligation of confidentiality shall apply to disclosed information which the recipient (i) already possessed without obligation of confidentiality, or

(ii) develops independently, or (iii) rightfully receives without obligation of confidentiality from a third party, or (iv) must disclose due to reasons prescribed by law or due to court or official orders. The recipient shall immediately notify the other party of any disclosures made pursuant to this Section.

Notwithstanding the foregoing, Ytel may disclose Customer Proprietary Network Information to any agent of Customer to initiate or provide Services and bill or collect for the Services.

c. Trademarks. Neither Party shall take any actions, which will in any manner compromise the other Party’s registered trademarks and /or service marks. Nothing in this Agreement  grants a Party the right or license to use the other Party’s trademarks.

d. Notices. All notices to be sent to a party pursuant to this Agreement shall be in writing and sent by (i) email effective when received, (ii) private courier, (iii) express mail priority next day delivery, or (iv) confirmed facsimile if sent during business hours. The address for notice for Ytel isbelow.  Customer’s is contained in the Service Order.

For service and account management issues:

Customer Service – Ytel, Inc.

27422 Portola Parkway Suite 100

Foothill Ranch, California 92610

support @ytel.com

For legal issues:

Ytel’s Legal Contact

Kenneth L. Richard EVP/GC

27422 Portola Parkway Suite 100

Foothill Ranch, California 92610

ken@ytel.com

e. Arbitration. The Parties desire to resolve disputes arising out of or relating to this Agreement without litigation. Therefore, except for action seeking a temporary restraining order or an injunction relating to the purposes of this Agreement, or suit to compel compliance with this dispute resolution process, the Parties agree to use the following alternative dispute resolution procedures as the sole remedy with respect to any controversy or claim arising out of or relating to this Agreement or its breach.

At the written request of either Party, each Party will appoint a knowledgeable representative to meet and negotiate in good faith to resolve any dispute arising out of or relating to this Agreement. The representatives shall have the discretion to determine the location, format, frequency and duration of their negotiations, and to utilize other alternative dispute resolution procedures such as mediation to assist in the negotiations. All discussions and correspondence among the representatives shall be treated as confidential information developed for the purposes of settlement, exempt from discovery, and shall not be admissible in the arbitration described below or in any lawsuit without the agreement of the Parties.

If the negotiations do not resolve the dispute within forty-five (45) days of the initial written request, the dispute shall be submitted to binding arbitration. Any court with jurisdiction may enter judgment upon the award rendered by the arbitrator. The arbitration will be held in Orange County, California.

f. Waiver and Amendment. The failure of either party to enforce any provision hereof on one or more occasions shall not constitute the permanent waiver of such provision. Any addition, deletion or modification to this Agreement shall not be binding on either party except by written amendment executed by both parties.

g. Interpretation. No rule of construction requiring interpretation against the draftsman hereof shall apply in the interpretation of this Agreement.

h. Choice of Law. This Agreement shall, in all respects, be governed by and construed and enforced in accordance with the laws of the State of California, without respect to the state’s conflict of laws provisions. For valuable consideration, both parties acknowledge and agree that any action to enforce or interpret the terms of this Agreement or relating to the Services to be provided by Ytel shall be instituted and maintained only in The State of California. Customer hereby consents to the jurisdiction of the appropriate Court in California and waives any objection to such jurisdiction. In the case of a suit to collect past due payments, the parties agree that Ytel may, in its sole discretion, bring suit in the courts of any jurisdiction where Customer does business or has assets, and Customer hereby consents to such jurisdiction. If Ytel sends Customer’s account to an outside collection agency or institutes collection proceedings against Customer, Ytel has the right to charge Customer for any collection fees.

i. Integration. This Agreement and any Service Orders supersede and merge all prior agreements, promises, understandings, statements, representations, warranties, indemnities and covenants and all inducements to the making of this Agreement whether written or oral or whether made before execution of this Agreement.

j. Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute an original, but all of which shall constitute one and the same instrument.

k. Survival. No termination of this Agreement shall affect the rights or obligations of either party with respect to payment or with respect to other provisions of this Agreement that, by their sense and context, are intended to survive termination of this Agreement, including without limitation, indemnification, limitation of liability, confidentiality, governing law and forum selection.

l. Severability. If any term or provision of this Agreement shall, to any extent, be determined to be invalid or unenforceable by a court or body of competent jurisdiction, then the provision shall be deemed modified to the minimum extent necessary to be valid.

m. Assignment. Neither party shall assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other, which shall not be unreasonably withheld. Customer must be current on all payments required by this Agreement before any assignment is approved by Ytel. Any such assignment or transfer of Customer’s rights or obligations without such consent shall constitute a default of a material obligation.