ARTICLE 1
Agreement, Terms of Service and Orders for Services
Section 1.1 Meaning of Terms
“Agreement” means this Customer Agreement, the applicable Terms of Service (as defined in Section 1.2) and OFSs (as defined in Section 1.3 below) and other incorporated attachments. Company and Customer are sometimes referred to individually in this Agreement as a “Party” and collectively as the “Parties.” Other capitalized terms are defined in Article 11 (Definitions). Capitalized terms that are not defined in Article 11 are defined where they first appear in this Agreement. Any capitalized term which is defined in this Agreement shall have the same meaning when used in any Service Term or OFS, unless the language or context requires otherwise.
Section 1.2 Customer Agreement; Terms of Service
The purpose of this Agreement is to provide a framework within which Customer may from time to time purchase services from Company for resale to its customers (the “End User Customers”). This Agreement contains general contractual terms for all services to be provided by Company (the “Services”). Additional terms and conditions that apply to each type of Service are set forth in the applicable Terms of Service posted to the Company website or agreed to in writing by the Parties as part of an Order for Service (OFS).
Section 1.3 Orders for Services
Customer may at any time request for Company to provide a Service by submitting to Company an Order For Service in a form provided by Company (the “OFS”) in accordance with the procedures set forth on the attached Schedule A. However, at no time will Company be required or obligated to provide a requested service.
Section 1.4 Order of Precedence
Each Terms of Service shall incorporate by reference, and shall be subject to, the terms and conditions of this Agreement. Each OFS shall incorporate by reference, and shall be subject to, the terms and conditions of this Agreement and the applicable Terms of Service. In the event of any conflict between this Agreement and the terms of any Terms of Service and/or OFS, precedence will be given in the following order: (a) the OFS but solely with respect to the Service covered by that OFS; (b) the Terms of Service but solely with respect to the Service covered by that Terms of Service; and (c) this Agreement; provided, however, that any amendment to any term of this Agreement or any Terms of Service shall not be effective unless it specifically identifies the term of this Agreement or Terms of Service it is amending.
ARTICLE 2
CHARGES AND PAYMENT TERMS
Section 2.1 Charges
Customer shall pay to Company all recurring and non-recurring charges for the Services at the rates and charges set forth on the applicable OFS.
Section 2.2 Invoicing and Payment Terms
All charges shall be due and payable by Customer to Company within thirty (30) days of the invoice date; provided, however, that to the extent Customer disputes a portion of an invoice, Customer may withhold payment on disputed items, but only if Customer notifies Company of the disputed amount within thirty (30) days of the invoice date and cooperates in good faith to resolve such dispute. The recurring charges shall be invoiced monthly. Company’s billing cycle will follow the calendar month. A pro-rated portion of the first month’s Service will be included on the first invoice plus the next month’s Service in advance. Non-recurring charges will be included on the invoice for the applicable installation or Service changes as directed by Customer.
Section 2.3 Late Payments
If any undisputed amount is not paid when due, Company may impose a late charge in an amount equal to one and one-half percent (1 ½%) (or the maximum legal rate, if less) of the unpaid balance per month. In the event a payment is received by Company and is returned for insufficient funds or bank charges, the Customer shall reimburse Company for all associated processing charges as well the late charge to the extent applicable. In the event that non-disputed payments are received late or returned by insufficient funds more than three (3) times annually, Company may require that Customer establish a deposit. Customer will reimburse Company for all expenses Company incurs, including reasonable attorney fees, in collecting any amounts past due under this Agreement.
Section 2.4 Credit Approval and Deposit
(a) Customer acknowledges that delivery of the Services is subject to the continuing approval by Company of Customer’s creditworthiness, which shall be based on Dunn and Brad Street reports, other report(s) available through a credible credit reporting agency(s) or through information the company, at its sole election, elects to make available to the Company.
(b) Customer further acknowledges that Customer may be required to pay a deposit before delivery of the Services is authorized by Company, provided that such deposit shall not exceed one month’s worth of anticipated monthly recurring charges under this Agreement. Upon termination of the Service under an OFS that is subject to a security deposit, Company will refund to Customer the balance of the deposit (not otherwise credited against any amounts owed to Company), together with any interest on such deposit at the prevailing rate required by Law.
Section 2.5 Taxes and Assessments
Customer is responsible for the collection and remittance of all governmental assessments, surcharges and fees pertaining to its resale of the Services (other than taxes on Company’s net income). Company shall not invoice Customer for taxes if Customer provides Company with, and maintains, valid and properly executed certificate(s) of exemption for the taxes. Such certificates of exemption must be reasonably acceptable to Company. Customer is responsible for all taxes up until the time a valid certificate of exemption is provided to Company. If Customer fails to maintain the required tax exemption certificate(s), Company shall back-bill Customer for all applicable taxes.
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 delivery of Service, Company and Customer will negotiate regarding the rates to be charged to Customer to reflect such increase in cost and, in the event that the parties are unable to reach agreement respecting new rates within thirty (30) days after Company’s delivery of written notice requesting renegotiation, then (a) Company may pass such increased costs through to Customer, and (b) if Company elects to pass such increased costs through to Customer, Customer may terminate the affected Service without termination liability by delivering written notice of termination no later than thirty (30) days after the effective date of the rate increase.
Section 2.6 Collection from End User Customers
Customer is solely responsible for determining the creditworthiness of its End User Customers and billing and collecting amounts owed by its End User Customers.
ARTICLE 3
RESPONSIBILITIES of customer
Section 3.1 Equipment, Hardware and Software
(a) Customer is responsible for the installation, operation, and maintenance of hardware or software not provided by Company. Company is not responsible for the transmission or reception of information by such hardware or software.
(b) Customer is responsible for the selection, use and compatibility of hardware or software not provided by Company. If hardware or software not provided by Company impairs Customer’s use of the Services, Customer is nonetheless liable for payment for Services. If Company notifies Customer that the hardware or software not provided by Company is causing or is likely to cause hazard, interference, or service obstruction, Customer must eliminate the hazard, interference, or service obstruction. Company may suspend the provision of Service until the hazard, interference, or service obstruction is corrected. If requested by Customer, Company may, at its then-current rates, assist Customer with resolving technical difficulties caused by hardware or software not provided by Company. If any changes in Service cause hardware or software not provided by Company to become obsolete, require modification or alteration, or otherwise affect performance of such hardware or software, Customer, not Company, is responsible for modifying, altering or replacing the hardware or software.
(c) If Customer provides its own equipment to interface with the Services, Customer is responsible for the installation, maintenance, and configuration of the equipment.
(d) For the sole purpose of enabling Customer to use Services, Company grants to Customer a non-exclusive and non-transferable license to use software that may be provided with or included in the Services. Company or its suppliers retain title and property rights to Company-provided software and equipment, whether or not it is embedded in or attached to realty. Customer neither owns nor will it acquire any claim or right of ownership to (i) any Company-provided equipment not purchased by Customer; (ii) any software (including the original media and all subsequent copies of the software, regardless of the media’s form) and associated documentation (including copies); and (iii) any IP addresses assigned to Customer.
(e) Company is responsible for maintaining its software and hardware in accordance with the terms of this Agreement and any applicable Terms of Service. Customer agrees not to open, alter, misuse, tamper with or remove the software and equipment required to operate the Service. Customer will not remove any markings or labels or serial numbers from the equipment. If the equipment is damaged, destroyed, lost or stolen while in Customer’s possession, Customer shall be liable for the cost of repair or replacement of such equipment. Customer will safeguard the equipment from loss or damage of any kind, and will not permit anyone other than an authorized representative of Company to perform any work on the equipment.
Section 3.2 Customer Premises
Customer shall allow Company access to the Customer premises to the extent reasonably determined by Company for the performance of any acts required by an OFS. Company shall notify Customer at least five (5) days in advance of any regularly scheduled maintenance that will require access to the Customer premises. Customer will provide a safe place to work and comply with all applicable Laws regarding the working conditions on the Customer premises.
ARTICLE 4
Representations, Warranties and Covenants
Section 4.1 Mutual Representations and Warranties
Each Party represents, warrants and covenants that, as of the Effective Date and continuing throughout the term of this Agreement:
(a) It is a corporation or limited liability company or partnership duly incorporated, validly existing and in good standing under the laws of the state in which it is incorporated, and in good standing in each other’s jurisdiction where the failure to perform in good standing would have a material adverse effect on its business or its ability to perform its obligations hereunder.
(b) It has all necessary corporate power and authority to enter into this Agreement, each Terms of Service and OFS and to perform its obligations hereunder, and the execution of this Agreement, each Terms of Service and OFS and consummation of the transactions contemplated thereby have been duly authorized by all necessary corporate actions on its part.
(c) This Agreement constitutes a legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms.
(d) It shall comply with all Laws in connection with the Services and otherwise under this Agreement, including, without limitation, the procurement and renewal of all tariffs, approvals, registrations, permits, certifications, authorizations, licenses or similar documentation as may be required by any administrative and regulatory authorities, including, without limitation, the Federal Communications Commission. Upon request, a Party will supply copies of all such approvals, registrations, permits, certifications, authorizations, licenses or similar documentation.
Section 4.2 Company Representations, Warranties and Covenants
Company represents, warrants and covenants that:
(a) It will perform the Services in a diligent, professional and workmanlike fashion using an appropriate number of properly trained and qualified individuals.
(b) The Services will meet the technical standards of performance or service levels, if any, set forth in the applicable Terms of Service or OFS. Customer’s sole and exclusive remedy for any failure to meet the applicable technical standards of performance or service levels shall be as specified in the applicable Terms of Service or OFS.
Section 4.3 Disclaimer of Warranties
OTHER THAN THE WARRANTIES SET FORTH HEREIN, Company MAKES NO WARRANTY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS TO aNY SERVICE PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES BY Company ARE HEREBY EXCLUDED AND DISCLAIMED.
ARTICLE 5
CONFIDENTIAL INFORMATION
Section 5.1 Definitions
As to any particular Confidential Information, the “Discloser” is the Party disclosing the Confidential Information and the “Recipient” is the Party receiving the Confidential Information. “Confidential Information” means any information (whether tangible or intangible, printed, electronic, or otherwise) and items embodying information (including graphs, photographs, samples, working models, and prototypes) at any time furnished by Discloser to Recipient or to which Recipient is exposed during the term of this Agreement, including, without limitation, (a) information concerning Discloser’s business and business plans, (b) financial information concerning Discloser and its affiliates, (c) information concerning Discloser’s pending patents or other trade secrets, (d) Discloser’s sketches, drawings, designs and specifications, (e) Discloser’s concepts, ideas, inventions, know-how, processes, apparatus, equipment, algorithms and formulas, and (f) information from third parties that Discloser is obligated to treat as confidential. Customer Proprietary Network Information (“CPNI”) shall be considered to be the Confidential Information of Customer. All other Confidential Information provided in written or electronic form must be clearly marked “Confidential.” In the case of Confidential Information provided orally, a written memorandum of such information clearly marked “Confidential” must be delivered to Recipient within thirty (30) days of the disclosure.
Section 5.2 Restrictions on Use; Non Disclosure
(a) Except as otherwise expressly permitted in writing by an authorized representative of Discloser, Recipient agrees that it will not (i) use the Confidential Information of Discloser for any purpose other than the purpose for which Discloser disclosed the information; or (ii) disclose or reveal Confidential Information of Discloser to any person or entity other than its employees, directors, officers, agents and consultants who have a need to know to further the purpose of this Agreement and are subject to legally binding obligations of confidentiality and non-use no less restrictive than those contained in this Agreement.
(b) During the term of this Agreement, Customer will designate an account representative who has the authority to request Customer’s CPNI under this Agreement through its dedicated Company account representative.
Section 5.3 Exceptions
The obligations set forth in this Article 5 above shall not apply to Confidential Information that (a) before the time of its disclosure was already in the lawful possession of the Recipient; (b) at the time of its disclosure to Recipient is available to the general public or after disclosure to Recipient by Discloser becomes available to the general public through no wrongful act of the Recipient; or (c) Recipient demonstrates to have been lawfully independently developed by Recipient without the use of or reliance upon any Confidential Information of the Discloser and without any breach of this Agreement.
Section 5.4 Ownership; No License
Each Party shall retain ownership of all rights, including all intellectual property rights, in its Confidential Information. Nothing in this Agreement shall be deemed, by implication or otherwise, to convey to Recipient any right under any patent, patent application, invention, or other proprietary right owned by Discloser or anyone associated with Discloser.
Section 5.5 Disclosures Required by Law
If Recipient becomes legally compelled (by deposition, interrogatory, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, then Recipient shall notify Discloser of the requirement promptly in writing so that Discloser may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, or if Discloser waives in writing compliance with the terms hereof, then Recipient shall furnish only that portion of the information which Recipient is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information.
Section 5.6 Duration
The obligations set forth in this Article 5 shall survive termination of this Agreement for a period of three (3) years.
Section 5.7 Disposal of Confidential Information
Recipient agrees to return to Discloser all copies of Confidential Information promptly upon Discloser’s request at any time. If return is impossible as to any portion of the Confidential Information, then Recipient shall certify to Discloser promptly that all such Confidential Information of Discloser, including all copies thereof, has been totally and permanently destroyed.
Section 5.8 Remedies
The Parties acknowledge and agree that a breach of this Article 5 by either Party will cause continuing and irreparable injury to the other’s business as a direct result of any such violation, for which the remedies at law will be inadequate, and that Discloser shall therefore be entitled, in the event of any actual or threatened violation of this Article by Recipient, and in addition to any other remedies available to it, to a temporary restraining order and to injunctive relief against the other Party to prevent any violations thereof, and to any other appropriate equitable relief.
ARTICLE 6
Indemnification
Section 6.1 Indemnification by Company
Company shall indemnify, defend, and hold harmless Customer and its officers, directors, agents and employees from and against any and all demands, causes of action, losses, damages, fines, penalties, and claims, and all related costs and expenses (including reasonable attorneys’ fees and reasonable costs of investigation, litigation, settlement, judgment, appeal, interest and penalties) (collectively referred to as “Losses”) arising out of or in any manner relating to: (a) claims by a third party for patent, copyright, trademark infringement or infringement of any other intellectual property right relating to the use of the Services; (b) violation by Company of any applicable Law; or (c) damage to property or personal injury (including death) arising out of the gross negligence or willful acts or omissions of Company.
Section 6.2 Indemnification by Customer
Customer shall indemnify, defend and hold harmless Company and its officers, directors, agents and employees, from and against any and all Losses arising out of or in any manner relating to: (a) violation of any law by Customer; (b) any claim for withholding or other taxes that might arise or be imposed due to this Agreement or the performance hereof; (c) damage to property or personal injury (including death) arising out of the gross negligence or willful acts or omissions of Customer; or (d) claims by a third party, including without limitation an End User Customer, arising out of or related to the use or misuse of any Service.
Section 6.3 Indemnification Procedures
Each Party shall promptly, and in writing, notify the other Party of any claim as to which it intends to seek indemnification under this Agreement, and shall take such action as may be necessary to avoid default or other adverse consequences. The indemnifying party shall have the right to select counsel and to control the defense; provided that the indemnified party shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of the claim. The indemnified party shall provide cooperation and participation of its personnel as required for the defense at the cost and expense of the indemnifying party.
ARTICLE 7
INSURANCE
Section 7.1 Insurance.
Both Parties shall maintain the following insurance at reasonable levels based on the business relationship: (a) Commercial General Liability Insurance with minimum limits in general aggregate and per occurrence; and (b) Worker’s Compensation Insurance in a accordance with applicable state law (collectively, “Insurance”). The parties may self retain, self insure or maintain deductibles in amounts as they may deem appropriate for their Insurance program. Evidence of such coverage shall be provided to the other party upon the execution of this agreement and upon any expiration or renewal of such policies.
ARTICLE 8
Limitations of Liability
Section 8.1 Limit on Types of Damages Recoverable
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, or punitive DAMAGES (INCLUDING, without limitation, LOST PROFITS, LOST REVENUES, AND LOSS OF BUSINESS OPPORTUNITY) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Section 8.2 Limit on the Amount of Damages Recoverable
Company’s liability to Customer and its respective officers, directors, employees, agents, successor and assigns for any breach arising out of or resulting from Company’s performance or non-performance of its obligations under this Agreement shall be limited in all cases to direct damages which shall not exceed, in the aggregate, fees paid by Customer to Company under the applicable OFS during the twelve (12) month period immediately preceding the first event giving rise to liability. The foregoing limitation set forth shall not apply to any Losses otherwise recoverable by Customer pursuant to Article 6 (Indemnification).
Section 8.3 No Liability for Certain Actions
Company shall not be liable to Customer or its End User Customers for any claims or damages resulting from or caused by (a) unauthorized access to transmission facilities or premise equipment, or for unauthorized access to or alteration, theft, or destruction of data files, programs, procedure, or information through accident, wrongful means or devices, or any other method; (b) Customer’s fault, negligence or failure to perform Customer’s responsibilities; (c) claims against Customer by any other party (except for third-party claims indemnified under Article 6 (Indemnification)); (d) any act or omission of any other party, including End User Customers; or (e) equipment or services furnished by a third party, including End User Customers. Company is not responsible for the content of any information transmitted or received through the Services.
ARTICLE 9
Term
Section 9.1 Agreement
This Agreement shall apply until such time that a Customer Specific Master Service Agreement is entered into between Company and Customer for all or a portion of the services Customer purchases from Company.
Section 9.2 OFS
The term of each OFS shall commence on the First Day of Availability of the Services and continue for the period of time specified in that OFS, unless sooner terminated in accordance with the terms of Article 10 (Termination) below (the “Initial Term”). Thereafter, the term shall continue in effect on a month-to-month basis at the then current month-to-month rates (the “Renewal Term”) unless either Party provides the other Party with written notice of its intention not to renew at least thirty (30) days before expiration of the Initial Term. Either Party may terminate the OFS during the Renewal Term upon thirty (30) days’ prior written notice. The Initial Term and Renewal Term are sometimes individually and collectively referred to as the “OFS Term.”
ARTICLE 10
Termination
Section 10.1 Termination for Cause
Either Party shall have the right to terminate this Agreement and/or any OFS upon written notice:
(a) If the other Party defaults in the performance of any of its material obligations under this Agreement and such default continues for a period of thirty (30) days after receipt of written notice specifying the nature of the breach. In the case of nonpayment of fees, the cure period shall be ten (10) days.
(b) If the other Party ceases conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization.
If Customer defaults in the performance of any of its material obligations under this Agreement and fails to cure such default within the cure period specified above, Company may at its sole option do any or all of the following: (i) cease accepting or processing OFSs and/or suspend Services; (ii) cease all electronically and manually-generated information and reports; (iii) draw on any security deposit or other assurance of payment and enforce any security interest provided by Customer; (iv) terminate this Agreement and/or the applicable OFS; or (v) pursue such other legal or equitable remedy or relief as may be available to Company.
Section 10.2 Termination for Convenience
Customer shall have the right to terminate any OFS at any time for convenience by providing thirty (30) days’ written notice to Company and paying Company the early termination charges specified in Section 10.4 below. Termination shall be effective and the affected Services will be discontinued thirty (30) days after Company receives the completed termination notice.
Section 10.3 Change in Regulatory Requirements
If the Federal Communications Commission, a state Public Utilities or Service Commission or a court of competent jurisdiction, issues a rule, regulation, law or order which has the effect of canceling, changing or superseding any material term of provision of this Agreement (collectively, “Regulatory Requirement”), then this Agreement shall be deemed modified in such a way as the Parties mutually agree is consistent with the form, intent or purpose of this Agreement and is necessary to comply with such Regulatory Requirement. Should the Parties be unable to agree on modifications necessary to comply with a Regulatory Requirement within thirty (30) days after the Regulatory Requirement is effective, then upon written notice, either Party may, to the extent practicable, terminate that portion of this Agreement impacted by the Regulatory Requirement, or if the entire Agreement is impacted, either Party may terminate the Agreement with no further obligation or liability hereunder, and Customer shall not be liable for an early termination charge here under.
Section 10.4 Early Termination Charge
If the Services are cancelled or terminated prior to the expiration of the OFS Term for any reason other than by Customer in accordance with the terms of Schedule A or for cause under Section 10.1 or by either Party in accordance with Section 10.2, then Customer shall pay Company an early termination charge equal to: (a) one hundred percent (100%) of the monthly recurring charges for the Services multiplied by the number of months remaining in the OFS Term; (b) any non-recurring fees Company incurs from other suppliers in connection with cancellation of the Services; and (c) any outstanding invoices still owed by Customer. Such payment shall be due within sixty (60) days of termination.
Section 10.5 On-Net Upgrades
Upgrading of On-Net Service to those of higher capacity is considered a service upgrade in which case the original Service is not considered terminated; provided, however, the new Service must be of equal or longer term to the original Service and the Monthly Recurring Charge must be of equal or greater value than that of the original Service to avoid the early termination charge under Section 10.4.
Section 10.6 Portability
Cancellation of an existing On-Net Service followed by a new order for On-Net service of equal or greater monthly recurring revenue within forty-five (45) days of the original cancellation order will not incur an early termination charge, provided all reasonable construction expenses and other reasonable non-recurring charges, if any, associated with replacement circuits and the reasonable cost and expenses incurred by Company to terminate the terminated circuit, including without limitation, any applicable third party expenses.
ARTICLE 11
General Provisions
Section 11.1 Publicity
Except as otherwise provided herein, neither Party will use the other Party’s name, logo or service marks, for any purpose, including, but not limited to, resale of services or press releases, without the other Party’s prior written consent. Without limiting the generality of the foregoing, Customer shall not promote or advertise Company’s name or capabilities to any End User Customer or prospective End User Customer, attempt to sell its service using the Company name, or represent to any End User Customer or prospective End User Customer that they will be Company customers or that they may obtain Company services from Customer. Notwithstanding the foregoing, Company may include Customer’s name in its customer list.
Section 11.2 Assignment and Binding Nature
Customer shall not assign, voluntarily or by operation of law, any of its rights or obligations under this Agreement without the prior written consent of Company; provided, that Customer may upon prior written notice to Company, assign all of its rights and obligations under this Agreement to any entity which effects a merger transaction with Customer or otherwise acquires all or substantially all of the capital stock or assets of Customer. Subject to the foregoing, this Agreement shall be binding on the Parties and respective successors and assigns.
Section 11.3 Notices
Except as otherwise provided herein, any notice or other communication between the Parties hereto regarding the matters contemplated by this Agreement may be sent by U.S. mail (first-class, airmail or express mail), commercial courier, facsimile or electronic mail, in each case delivered to the address set forth on page 1 of the Agreement for the recipient or at such other addresses as the Parties may designate in writing. Any written notice required to be sent under Article 10 (Termination) must be sent by U.S. mail (first-class, airmail or express) or commercial courier.
Section 11.4 Amendments
Except as otherwise expressly permitted in this Agreement, this Agreement may not be supplemented, modified or amended except by a written instrument which is signed by both Parties. Without limiting the generality of the foregoing, any handwritten changes to an OFS or any terms and conditions included in any Customer-provided purchase order shall be void unless acknowledged and approved in writing by a duly authorized representative of each Party.
Section 11.5 No Third-Party Beneficiaries
Nothing in this Agreement creates, or will be deemed to create, third-party beneficiaries of or under this Agreement. CUSTOMER AGREES THAT COMPANY HAS NO OBLIGATION TO ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, END USER CUSTOMERS) BY VIRTUE OF THIS AGREEMENT.
Section 11.6 Relationship of Parties
Nothing contained in this Agreement shall be construed to create a partnership, agency, joint venture, or employer/employee relationship between the Parties. Neither Party has the authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other Party or to bind such other Party in any way. Each Party shall be responsible for the actions of, and its obligations to, its own personnel, contractors, and subcontractors including obligations relating to the following, as applicable: payments, wages, taxes, withholding, insurance (including, without limitation, workman’s compensation), and hours and conditions of employment.
Section 11.7 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, including, but not limited to: acts of God, fire, flood, storm, explosion, terrorism, vandalism, or other similar catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, wars; unavailability of rights-of-way or materials; 3rd party fiber cuts; or strikes, lock-outs, work stoppages, or other labor difficulties (“Force Majeure Event”). In the event Company is unable to deliver any Service as a result of a Force Majeure Event, Customer shall not be obligated to pay Company for the affected Service for so long as Company is unable to deliver that Service.
Section 11.8 Legal Expenses
If any action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged or actual dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing Party (as determined by a court of competent jurisdiction in a final, non-appealable order) shall be entitled to recover reasonable attorney fees and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.
Section 11.9 Waiver
The failure by any Party to this Agreement to insist upon strict performance of any provision of this Agreement will not constitute a waiver of that provision. All waivers must be in writing to be enforceable hereunder.
Section 11.10 Interpretation
The descriptive headings of this Agreement and of any Terms of Service under this Agreement are for convenience only and shall not affect the construction or interpretation of this Agreement. As used herein, “include” and its derivatives (“including”, “e.g.”) shall be deemed to mean “including, but not limited to.” Each Party acknowledges that this Agreement has been the subject of active and complete negotiations, and that this Agreement should not be construed in favor of or against any Party by reason of the extent to which any Party or its professional advisers participated in the preparation of this Agreement.
Section 11.11 Severability
If any provision of this Agreement shall be declared invalid, illegal or unenforceable under applicable law, said provision shall be ineffective only to the extent of such declaration and such declaration shall not affect the remaining provisions of this Agreement. In the event that a material and fundamental provision of this Agreement is declared illegal, invalid or unenforceable under applicable law, the Parties shall negotiate in good faith respecting an amendment hereto that would preserve, to the fullest extent possible, the respective rights and obligations imposed on each Party under this Agreement as originally executed.
Section 11.12 Counterparts
This Agreement may be executed simultaneously in one or more counterparts each of which will be deemed an original, and all of which together will constitute one and the same agreement.
Section 11.13 Executable by Facsimile or E-mail
Any signature of this Agreement, OFS or any other document through facsimile or e-mail will constitute execution of that document by such Party.
Section 11.14 Governing Law
This Agreement will be governed by and construed in accordance with the internal laws of the State of Ohio, without regard to conflict of law principles. Actions taken pertaining to this agreement may be brought in any court of competent jurisdiction.
Section 11.15 Entire Agreement
This Agreement, together with all Terms of Service and OFS’s, embodies the entire agreement and understanding between Company and Customer with respect to the subject matter of this Agreement and supersedes all prior oral or written agreements and understandings relating to the subject matter of this Agreement. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement will affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.
ARTICLE 12
Definitions
“Agreement” shall have the meaning ascribed to it in Section 1.1.
“Confidential Information” shall have the meaning ascribed to it in Section 5.1.
“End User Customer” shall have the meaning ascribed to it in Section 1.2.
“Discloser” shall have the meaning ascribed to it in Section 5.1.
“First Day of Availability” shall have the meaning ascribed to it in Schedule A.
“Force Majeure Event” shall have the meaning ascribed to it in Section 11.7.
“Initial Term” shall have the meaning ascribed to it in Section 8.2.
“Laws” means any federal, state, local or foreign law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, executive order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a governmental authority that is binding upon or applicable to a Party.
“OFS” shall have the meaning ascribed to it in Section 1.3.
“OFS Term” shall have the meaning ascribed to it in Section 9.2
“Off-Net” means Services that originate from or terminate to any location that is not on the Company network.
“On-Net” means Services that originate from and terminate to a location on Company’s network.
“Party” or “Parties” shall have the meaning ascribed to it in Section 1.1.
“Discloser” shall have the meaning ascribed to it in Section 5.1.
“Recipient” shall have the meaning ascribed to it in Section 5.1.
“Regulatory Requirement” shall have the meaning ascribed to it in Section 10.3.
“Renewal Term” shall have the meaning ascribed to it in Section 9.2
“Service Activation Date” shall have the meaning ascribed to it in Schedule A.
“Terms of Service” shall have the meaning ascribed to it in Section 1.2.
SCHEDULE A
ORDERING PROCEDURES
Order for Service
a) Upon receipt of an OFS from Customer, Company will respond with any corrections or clarifications required to process the request within forty-eight (48) hours from the receipt of the OFS.
b) Company will provide a Firm Order Confirmation (“FOC”) to the Customer within ten (10) days after receipt of a complete and accurate OFS for On-Net Services. If the request is for Off-Net Services, then Company will provide FOC information within two (2) business days after receipt of Off-Net provider’s FOC. The FOC will provide the order interval(s) and projected service starting date.
c) For Customer purchased Services, Company will provide Design Layout Record (“DLR”) information within ten (10) business days of receipt of a complete and accurate OFS for On-Net services. If the request is for Off-Net Services, then Company will provide DLR information within two (2) business days after receipt of Off-Net provider’s DLR.
d) Customer shall have two (2) business days from Company’s written notification that service is available to test and accept service. Billing will not commence until the next business day after the earlier of the following: (i) Customer tests and provides written notification that service is accepted; or (ii) the two (2) business day interval has passed without notification by Customer to Company of non-acceptance (“First Day of Availability”).
e) Installation intervals for Services are located on the individual Terms of Service. If a shorter installation interval is required that is less than the installation interval identified in the Terms of Service, then Customer can negotiate with Company for an expedited interval. An order expedite charge will be assessed according to the corresponding Terms of Service. The First Day of Availability will become the date that the expedited installation is complete.
Delay in Start Date
a) Customer may request a delay in the service start date via written notification provided that: (i) the request is made no later than two (2) business days prior to the service activation date identified in the FOC (the “Service Activation Date”); (ii) the aggregate number of days requested by such delay request does not exceed sixty (60) calendar days; and (iii) the aggregate number of delay requests is three (3) or less per OFS.
Each delay is subject to a due date change charge found in the appropriate Terms of Service.
b) Customer is responsible for any third-party charges Company experiences on behalf of Customer’s delay request for facilities or change charges.
OFS Cancellation
Customer may cancel an OFS for convenience up to three (3) days before the Service Activation Date. If Customer cancels before Company has provided a FOC, there shall be no charge for the cancellation. If Customer cancels after receiving the FOC but more than ten (10) days prior to the Service Activation Date, then the Customer shall pay Company a cancellation charge of fifty (50%) percent of one (1) month’s Monthly Recurring Charge (“MRC”); plus any third-party charges and expended construction expenses Company experiences on behalf of Customer’s cancellation request. If Customer cancels less than ten (10) days prior to the Service Activation Date then the Customer shall be charged for two (2) months MRC that would have been applicable to the cancelled service plus any third-party charges and expended construction charges the Company experiences on behalf of Customer’s cancellation request. If Customer receives FOC outside the time frame defined in 1(a-c) of this Schedule and/or within ten (10) days of service activation, customer shall have two (2) 24-Hour business days to cancel OFS without any cancellation charge.
SCHEDULE B
CHARGES FOR TIME AND EXPENSE
Unless agreed otherwise in writing with Independents Fiber Network or its parent company, Com Net Incorporated, any work requested by the Customer to be performed during the service activation process by the Company at the Customer’s Premise and is beyond the service demarcation point will be billed at a rate of $75 per hour.
Any work requested by the Customer to be performed by the Company on the Customer’s network beyond the service demarcation point, either remotely or on-site, after activation of service will be billed at a rate of $120 per hour.
If the work to be performed is at the Customer’s site, expenses will apply with time billing based on point of departure and return to Independents’ offices located at 13888 CR25A, Wapakoneta, OH 45895. Mileage will be charged at the then current rate per mile as published by the Internal Revenue Service. Independents Fiber Network, at its sole discretion, may decline to perform any such requested work. Independents Fiber Network, at its sole discretion, may elect to waive such charges, in part or in full, through written notification to the Customer.
