| Master Service Level Agreement
1. SERVICES.
Wire Speed Telecommunications,
LLC. (“WireSpeed”) will provide to the customer indicated on the
Order Form (“Customer”) the services described thereon
(“Services”). WireSpeed will act as an agent to provide the
management of Advanced Digital Services. Customer agrees to
abide by the terms and conditions of this Agreement and to pay
the fees, taxes and surcharges (collectively referred to as the
“Service Fee”) set forth in or applicable to each Order Form.
Customer consents to the use of electronic documents and records
in connection with the management performance and delivery of
this agreement.
2. EQUIPMENT AND FACILITIES.
a. Customer acknowledges and
agrees that use of the Services may require certain equipment to
be provided or purchased by Customer as specified in each Order
Form (“Customer Equipment”). In addition, WireSpeed may install
certain equipment in order to provide management of services of
Customer (“WireSpeed Equipment”).
b. Customer acknowledges that in
order to provide the management, WireSpeed may need to install
certain facilities, including but not limited to cable, wiring,
conduit, racks, telecommunications equipment, electronic
equipment, and any associated hardware (“WireSpeed Facilities”)
at each premises identified on each Order Form (the “Premises”),
and will need access from time to time to the Premises for
installation, repair and/or maintenance purposes. Customer will
cooperate with or assist WireSpeed in obtaining the right to
install the WireSpeed Facilities in the Premises not controlled
by Customer, and hereby grants WireSpeed unfettered access to
the Premises controlled by Customer as reasonably requested by
WireSpeed. If the property on which the Premises is located is
owned by a third party, this Agreement shall be expressly
contingent upon WireSpeed’s ability to secure a right of entry
onto said property to provide the Services. In the event
Customer owns the property on which the Premises are located,
Customer shall execute and attach hereto the “Right of Entry”
rider.
c. Customer shall refrain from
causing any damage to the WireSpeed Facilities. Customer will
promptly notify WireSpeed of any damage to WireSpeed Facilities
located at the Premises, and of any circumstance that poses a
threat to the WireSpeed Facilities installed at the Premises.
Customer will not relocate, repair, or otherwise disturb the
WireSpeed Facilities without WireSpeed’s prior written consent.
3. INSTALLATION.
WireSpeed will use reasonable
effort to complete the installation of the WireSpeed Facilities
by the Estimated Installation Date set forth on each Order Form.
Upon completion of installation and testing to ensure compliance
with WireSpeed’s specifications, WireSpeed will notify Customer
that installation is complete and will commence provision of the
Services. The date the Services commence shall hereinafter be
referred to as the “Service Commencement Date.”
4. TERM.
The initial term (“Initial Term”)
of this Agreement shall be in effect commencing on the Effective
Date indicated on the Order Form and shall continue until the
end of the Service Term as defined on the Order Form. After
expiration of the Initial Term, this Agreement shall
automatically renew on a month-to-month basis (“Renewal Term”),
unless written notice is given by either party no sooner than
ninety (90) days and at least thirty (30) days prior to the
expiration of the Initial Term. At any time during the Renewal
Term thereafter, either party may terminate this Agreement by
giving thirty (30) days written notice to the other party.
5. PAYMENT.
a. Customer agrees to pay the
Service Fee set forth in each Order Form plus all applicable
taxes. The Service Fee will accrue beginning on the Service
Commencement Date and will be billed monthly in advance and is
due no more than thirty (30) days after receipt of invoice. The
Installation Fee (and any related taxes and surcharges) will be
billed in the first invoice as a nonrecurring fee. Payments
shall be made by check payable to WireSpeed or by electronic
transfer as mutually agreed.
b. Interest will accrue on
past-due balances at the lower of: (i) one and a half percent
(1.5%) per month, or (ii) the highest rate permitted by
applicable law. If Services are disconnected as a result of
nonpayment of fees and subsequently reconnected, Customer will
be required to pay a reconnection fee in addition to applicable
interest.
c. Taxes and surcharges imposed
by third parties may change from time to time. WireSpeed shall
notify Customer in writing of any such changes.
6. SUPPORT AND MAINTENANCE.
WireSpeed will provide support
and maintenance to Customer in accordance with industry
standards for support and maintenance for similar service
management.
7. WARRANTY AND LIMITATIONS.
a. WireSpeed warrants that the
management of Services will meet the Specifications set forth on
the Order Form. If the Services fail to meet such
Specifications, WireSpeed will provide support and maintenance
to Customer to comply with such Services.
b. Services—WireSpeed warrants to
the Customer that Services ordered will be performed in a
workmanlike manner. WireSpeed’s liability is limited to
correcting any deficiency in the Services that, to WireSpeed’s
reasonable satisfaction, does not comply with this warranty. The
Customer must notify WireSpeed of any such deficiency in the
Services within thirty (30) days after such Services are
performed. WireSpeed shall not be liable for any incidental or
consequential damages, lost profits, loss of business
opportunity, loss of goodwill, or the cost of procurement of
substitute services.
c. Equipment—Equipment, when
installed, will be in good working order with full
manufacturer’s warranty. WireSpeed’s obligation hereunder is
limited to the repair or replacement, at WireSpeed’s discretion,
of the equipment pursuant the manufacturers warranties. Any
additional costs with respect to the repair or replacement of
the equipment will be charged to the Customer.
d. Loss of Data—WireSpeed’s
integration services consultants may assist the Customer in data
recovery on a chargeable basis; however, WireSpeed shall not be
liable for any lost, damaged, corrupted, incomplete or
inaccurate data unless the loss, damage, or corruption is due to
WireSpeed’s gross negligence.
e. Employee/Agent
Problems—WireSpeed shall not be responsible nor liable in any
way for costs that arise out of problems created by the Customer
or its agents, including, but not limited to, the installation
of software infected with a virus or damage caused by the
Customer’s employees.
f. Dates—WireSpeed does not
warrant and is not liable for any failure of the Services where
such failure is reasonable attributable to date related errors
or failures caused by any hardware, software or firmware
products, data or information supplied by any person other than
WireSpeed.
g. WIRESPEED MAKES NO WARRANTIES
TO CUSTOMER WITH RESPECT TO THE SERVICES, EXPRESSED OR IMPLIED.
WIRESPEED EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY
AND OF FITNESS FOR A PARTICULAR PURPOSE.
h. In the event Customer is
delinquent on any invoices, any credits due to Customer for
WireSpeed’s failure to meet the specifications set forth in any
SLA shall be deducted from said delinquent amount due to
WireSpeed. In no way does that application of these credits
waive Customer’s obligation to pay any remaining balances, or
any future amounts pursuant to the terms of this Agreement.
i. Customer warrants that it has
not filed, and is not contemplating filing, for bankruptcy
protection, and that there are no legal proceedings that
materially and adversely affect its ability to perform under
this Agreement.
8. LIMITATION OF LIABILITY. IN NO
EVENT SHALL EITHER PARTY OR ANY OF WIRESEPEED’S SUPPLIERS
(INCLUDING CUSTOMER’S LANDLORD) BE LIABLE FOR ANY LOST DATA,
LOSS OF REVENUE, LOST PROFITS, COSTS OF PROCUREMENT OF
SUBSTITUTE PRODUCTS OR SERVICES, OR ANY INDIRECT, CONSEQUENTIAL,
INCIDENTAL, OR SPECIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY
OF LIABILITY (INCLUDING NEGLIGENCE OR TORT) ARISING OUT OF THIS
AGREEMENT, OR THE SERVICES AND PRODUCTS PROVIDED HEREUNDER, EVEN
IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE AMOUNTS
PAYABLE HEREUNDER BY CUSTOMER ARE BASED IN PART UPON THESE
LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL
APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY. CUSTOMER ACKNOWLEDGES THAT ANY CONTRACT BETWEEN
WIRESPEED AND THE OWNER OF THE PREMISES IS A SEPARATE AGREEMENT,
TO WHICH CUSTOMER IS NOT A THIRD PARTY BENEFICIARY.
9. TERMINATION or DEFAULT.
a. If either party defaults in
the performance of any material provision of this Agreement,
then the non-defaulting party may give written notice to the
defaulting party that if the default is not cured within ten
(10) days (in the case of a monetary default) or thirty (30)
days (in the case of a non-monetary default) the Agreement will
be terminated. If the non-defaulting party gives such notice and
the default is not cured during the applicable period, then the
Agreement shall automatically terminate at the end of that
period. WireSpeed may suspend the Services between such time
that Customer receives a notice of monetary default and such
time that Customer cures said default. If WireSpeed terminates
this Agreement as a result of any uncured default by Customer,
or Customer terminates contract for any reason, Customer shall
pay as liquidated damages the sum of all remaining monthly
Service Fees (as well as any past due balances) due under the
balance of the Agreement.
b. This Agreement shall
terminate, without notice, (i) upon the institution by or
against either party of insolvency, receivership or bankruptcy
proceedings or any other proceedings for the settlement of such
party’s debts, (ii) upon either party’s making an assignment for
the benefit of creditors, or (iii) upon either party’s
dissolution or ceasing to do business, unless due to an
assignment as set forth in Section 15.
c. In the event Customer has
qualified for credits in excess of a total of three (3) months’
recurring charges in any continuous twelve (12) month period,
Customer may terminate this Agreement with no additional
obligations.
10. RESTRICTIONS ON USE.
Customer agrees that Customer
shall not sell the Services to others or charge others any fees
for using the Services, and that Customer (and its employees,
agents or others with access through Customer to the Services)
will abide by WireSpeed’s Acceptable Use Policy which is
available at www.wstelco.com. Customer understands that this
policy may be revised from time to time in order to keep pace
with changing technology and terminology.
11. INDEMNIFICATION.
WireSpeed and Customer
agree to indemnify and hold harmless the other, their respective
officers, agents, employees, contractors, subcontractors,
suppliers, invitees and representatives, from and against any
and all third party claims of loss, damages, liability, costs
and expenses (including reasonable attorneys’ fees and expenses)
arising, directly or indirectly, in whole or in part, out of
their performance or failure to perform under this Agreement. In
addition, Customer specifically indemnifies WireSpeed from any
and all third party claims of damages, liability, costs and
expenses (including reasonable attorneys’ fees and expenses)
arising from any violation of WireSpeed’s Acceptable Use Policy,
regardless of whether done with intent or knowledge.
12. FORCE MAJEURE.
Customer acknowledges that
WireSpeed’s ability to provide the Services may be impeded by
events or actions outside of WireSpeed’s reasonable control,
including, without limitation, acts of God, floods, fires,
hurricanes, earthquakes, acts of war, labor actions, failure of
third-party suppliers, changes in applicable laws and
regulations, or any similar action or event (“Force Majeure”).
WireSpeed shall not be responsible to Customer for any failure
to provide the Services due to a Force Majeure. Customer shall
not be liable for payment of the Service Fee during any Force
Majeure period during which WireSpeed is unable to provide
Services.
13. NOTICES.
All notices provided for by this
Agreement shall be made in writing by delivering personally or
by mailing of such notice to the parties hereto, postage
prepaid, and addressed to the addresses set forth on the Order
Form for each party. Notice shall be deemed given upon delivery,
if delivered personally; four (4) business days after being
deposited in the U.S. Mail as first-class or priority mail; or
one (1) business day after depositing with a nationally
recognized overnight delivery service or U.S. Express Mail, or
if sent by facsimile or email.
14. ASSIGNMENT.
This Agreement shall be binding
upon the parties and their respective successors and assigns.
Customer shall not assign or otherwise transfer its rights
hereunder or any interest herein without prior written consent
of WireSpeed, provided that Customer may assign this Agreement
without WireSpeed’s consent, to a subsidiary, affiliate, parent,
or purchaser of all or substantially all of its assets, and
further provided that Customer shall not be released from the
obligations of this Agreement.
15. ARBITRATION/GOVERNING LAW.
All claims arising out of
this Agreement shall be resolved by arbitration in accordance
with the then current rules of the American Arbitration
Association by a single arbitrator. The arbitrator shall not be
authorized to award punitive damages. The arbitration will be
held in Idaho. This Agreement shall be governed and construed in
accordance with the laws of the State of Idaho, without giving
effect to conflict of law principals.
16. ENTIRE
AGREEMENT/SEVERABILITY/NON-WAIVER.
The Order Form, the Exhibit(s)
thereto, this Agreement, and any amendments signed by both
parties, shall constitute the parties’ entire understanding
related to the subject matter hereof. In the event of any
conflict between any Order Form, these Terms and Conditions and
any Customer purchase order, the order of priority shall be
these Terms and Conditions, an Order Form and then any Customer
purchase order. Any provision that is prohibited in any
jurisdiction shall, as to each jurisdiction, be ineffective to
the extent of such prohibition without invalidation the
remaining provisions hereto or affecting the validity of such
provisions in any other jurisdiction. The failure of either
party to enforce any right available to it with respect to any
breach or failure by either party shall not be construed to be a
waiver of such right with respect to any other breach or
failure. WireSpeed may make reasonable use of Customer’s name in
lists of customers distributed for reference purposes as well as
a user of WireSpeed’s Services on WireSpeed’s website. Customer
and WireSpeed may, as mutually agreeable, participate in
seminars and press releases.
Revised December 12th, 2005 |
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