These General Terms and Conditions (these “General Terms”) are incorporated into and made a part of the Service Order Agreement (“SOA”) that specifically refers to and incorporates these General Terms. Unless otherwise noted, as used in these General Terms, use of “including” and “includes” means a non-exhaustive list of examples, and use of “or” means “and/or”. The term “Customer” and “Provider” shall have the meaning contained in the SOA.
The Parties hereby agree, in consideration of the mutual covenants as set forth herein and other valuable consideration, the sufficiency and receipt of which is hereby acknowledged, to be bound as follows:
Affiliate. With respect to any Party, any individual or entity that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Party. The term “control” means the ownership, directly or indirectly, of more than 50% of the outstanding securities or equity interests of an entity.
Confidential Information. Any proprietary plans and information, including information of a technological or business nature (including all trade secrets, technology, intellectual property, data, marketing plans, summaries, reports, mailing lists, whether written or oral and, if written, however produced or reproduced) received by or otherwise disclosed or made accessible to the receiving person from or by the disclosing person.
Delivery Date. Date on which Customer has successfully completed acceptance testing and accepts the service.
Firm Order Commitment (“FOC”) Date. The date on which Provider indicates the Service will be ready and available for testing by Customer.
Governmental Authority. Any domestic or foreign government, governmental authority, court, tribunal, agency or other regulatory, administrative, or judicial agency, commission or organization, and any subdivision, branch, or department of any of the foregoing.
MRC. A monthly recurring charge is a fee that recurs every month for a retail package or option.
NRC. A non-recurring charge is a one-time charge for installation or activation of a retail package or option.
Planned Service Outage. Any Service Outage caused by scheduled maintenance or planned enhancements or upgrades to Provider’s network or the network of its supplier, as set forth in Article 8.
Point of Demarcation. The interface between Provider and terminal equipment designated by Customer. Such point will be identified in the Service Order Agreement and designate the point at which Provider’s responsibility to provide Service ends.
PSTN. The Public Switched Telephone Network.
Revised Service Order Agreement. For purposes of these General Terms, Revised Service Order Agreement shall have the same meaning as Service Order Agreement once executed by the Parties.
Service Order Agreement. An order for Service issued pursuant to these General Terms, and unless otherwise agreed, each Service Order Agreement shall specify the type of Service ordered; quantity of circuits; origination and destination point; requested FOC Date; Service Commitment Period, if any, or if applicable, a periodic term; price; and billing address. A Service Order set forth in Service Order Agreement may be sent by email or facsimile or other electronic means.
Service(s). The elements, components and services provided by Provider to Customer under Section 4 of these General Terms which may include telecommunications services, equipment, or both and which are described in the Service Order Agreement.
Support. The discounts or other benefits available under the Universal Service Fund Schools and Libraries Program established by the Telecommunications Act of 1996 (“E-Rate Program”) and administered by the Universal Service Administrative Company (“USAC”) or other administrative body designated by the Federal Communications Commission (“FCC”), or under state or local corollaries to the E-Rate Program.
Unplanned Service Outage. An unexpected disruption or degradation of Service and/or Services and addressed in Section 8.
- E-Rate Terms.
2.1 Payment Commitment. Except where otherwise stated herein (e.g. Section 10), these General Terms become effective as of the date on which the SOA is signed both Parties (the “Effective Date”) and shall continue for the duration of any unexpired SOA.
2.2 Applications for Support. If Customer chooses to seek Support for Service, Customer will take appropriate steps to ensure that USAC receives an application and any other necessary documentation to request Support for Service, including but not limited to: E-Rate: FCC Form 471, Item 21, FCC Form 486, FCC Form 500, Service Substitution Request, Service Certification Form. Customer will promptly provide Provider with a copy of its Funding Commitment Decision Letter, Support Schedule and all other relevant documentation requested by Provider. Customer will abide by all FCC and USAC rules and obligations for receipt of Support, including but not limited to confirming receipt of Service.
2.3 Payment for Services Eligible for Support.
- Customer Responsibility. Customer is responsible for payment for Services in accordance with the payment terms found in Section 6, including but not limited to, periods when Customer may not be eligible for Support or if the FCC or USAC fails to reimburse Provider for Service, or if the FCC or USAC reclaims any portion of Support paid to Provider on Customer’s behalf. Customer will reimburse Provider for any Support amounts not reimbursed, or amounts reclaimed, by the FCC or USAC.
- Support Payments. Provider will apply Support to Customer’s billing accounts for the Services when payments are received by Provider. Customer may elect to pay the portions of its invoices for Services that are not covered by Support and rely on payment for the remainder of the invoice by Support being received by Provider. If, at any time, Provider does not receive full payment of an invoice balance by the due date of the invoice, regardless of source, Provider will charge Customer late payment charges. While Provider will use commercially reasonable efforts to assist Customer in requesting Support, Provider is not responsible for Customer’s compliance with FCC or USAC rules and regulations, Customer’s applications for Support, or any decisions or actions by the FCC or USAC with respect to Customer.
- Support Invoice Submission. Customer will promptly submit its invoices to USAC along with any necessary forms and related documentation to facilitate payment of Support by USAC. Customer is responsible for any late fees associated with delays of USAC invoice processing unless such delays are directly attributable to Provider.
- Service Provider Invoicing. Notwithstanding any provision to the contrary in this Section 2.3, if Customer is entitled to Support and has selected Service Provider Invoicing, Provider will invoice USAC for the awarded Support. Any portion of the invoice not covered by the Support will be paid by Customer.
- Non-Appropriations. Customer may not use lack of funding under the E-Rate Program as a basis for asserting that the Customer was not appropriated funds for payments due under these General Terms.
- Roles and Responsibilities of Customer
- Customer may purchase Services on a nonexclusive basis, pursuant to the General Terms. These General Terms does not by itself order any Service. Customer shall order Service(s) by submitting a SOA to Provider in the form supplied by Provider. Customer shall pay Provider for the Services in accordance with Section 6.
- Non-Appropriations. Customer intends to satisfy its obligations hereunder. For each fiscal period for Customer where Support is sought: (a) Customer agrees to include in its budget request appropriations sufficient to cover Customer’s obligations under each SOA; (b) Customer agrees to use all reasonable and lawful means to secure these appropriations; (c) Customer agrees it will not use non-appropriations as a means of terminating an SOA or to acquire functionally equivalent products or services from a third party. Customer reasonably believes that sufficient funds to discharge its obligations can and will lawfully be appropriated and made available for this purpose.
- Roles and Responsibilities of
- Services. Provider will provide the Services described with particularity in each SOA.
- Network Management and Operations. Provider will provide Customer a 24x7x365 Point of Contact and support for all Services purchased pursuant to a SOA and these General Terms.
- See Service Order Agreement.
- Service Order Agreements and Provisioning of Services.
- In accordance with the Option selected in Section 2.1, after Customer submits a SOA to Provider, the FOC Date shall be confirmed via written acknowledgment by Provider within three (3) business days of SOA receipt.
- Customer may postpone the FOC Date included in a Service Order Agreement, without liability for such change, by providing written notice to Provider at least three (3) business days prior to the FOC Date. Said extension of the FOC Date or cumulative extension of said Service Order Agreement FOC Dates may not exceed ninety (90) days from the originally agreed upon FOC Date.
- Customer may cancel a Service Order altogether, without liability for such cancellation, by providing written notice to Provider at least five (5) business days prior to the FOC Date; provided, however, that in the event Provider has incurred construction expenses (non-recurring charges) due to a custom design for Customer, then Customer shall reimburse Provider for such reasonable actual expenses.
- Payment for Services.
- Charges for Services. Charges specified in each applicable order, including all monthly recurring charges and non-recurring charges, will accrue to Customer beginning on the Delivery Date. When Service is initiated on a day other than the first day of the month or terminated on a day other than the last day of the month, the charge for that month will be determined by pro-rating the monthly payment by the actual number of days Service was received for the applicable month. The first full month of service and the pro-rated amount will be due when Service is initiated.
- Payment Terms. Provider will invoice Customer within ten (10) days of the month when charges were incurred. Payments are due net thirty (30) days from the date of each invoice. All payments shall be paid in U.S. dollars.
- Late Payments. Any payment required under a SOA that is not paid when due shall accrue interest, from the date such payment is due until paid, including accrued interest, at a default monthly rate of 1.0% (12% per annum). In the event that such rate exceeds the maximum default rate permitted by applicable law, such allowed interest rate shall be at the highest rate permitted by applicable law.
- Taxes, Fees and Other Governmental Impositions. The fees and expenses due under an SOA do not include any taxes, fees, levies, imposts, duties, charges or withholdings of any nature (collectively, “Taxes”) imposed on Provider by any Governmental Authority. All payments required to be made to Provider under an SOA shall be made without any deduction or withholding for or on account of any taxes, fees, levies, imposts, duties, charges or withholdings of any nature imposed by any Governmental Authority on any payment due hereunder, including withholding or property taxes. Any good faith estimate of taxes and fees charged by governmental entities and provided by Provider is based on current rates and conditions, is not intended to be binding, and is, by its nature, inexact. Any increases or decreases will be reflected in the customer’s invoice.
- Equipment, Installation and Acceptance.
- Provider will, at its expense, provide, install, operate, repair, maintain and control the equipment necessary to provide Service to Customer. Where equipment is eligible and appropriate for Customer installation, Provider will arrange for and track delivery of equipment to Customer premises.
- Unless otherwise set forth in a SOA, Provider will provide Service to the Point of Demarcation.
- Neither Party will adjust, remove, relocate, align, or attempt to repair the other Party’s equipment except as expressly authorized in advance in writing by that Party. Each Party will be liable for any loss or damage to the other Party’s equipment arising from that Party’s negligence, intentional act, or unauthorized maintenance.
- In the event Provider’s equipment is installed at any Customer location pursuant to a SOA, such equipment will be used exclusively for the purpose of providing Service pursuant to the SOA and these General Terms. However, Provider may substitute, change or rearrange its equipment used in providing Service provided the quality of Service or type of Service is not diminished, impaired, or changed.
- Upon termination of a SOA, Provider will, at Provider’s sole cost, promptly remove from Customer’s premises any of its equipment, returning the property to its original condition, reasonable wear and tear excepted. If Provider has not removed its equipment following ninety (90) days’ notice to Provider, Customer may disconnect Provider’s equipment, return it to Provider, and invoice Provider for actual costs associated with such removal. Likewise, if Customer equipment remains on Provider premises or attached to Provider equipment following termination of a SOA, Provider may, following ninety (90) days’ notice to Customer, remove from Provider premises any of Customer’s equipment, return it to Customer, and invoice Customer for all costs associated with such removal.
- Acceptance testing shall be conducted in accordance with industry standards or a mutually agreed upon testing plan. If Customer indicates non-acceptance of any Service, Customer will provide its reasoning in writing, and such reasoning must relate to a specific problem with the Service in question. Provider will review Customer’s explanation of non-acceptance and will work with Customer to correct any deficiencies related to the applicable Service. Upon successful completion of acceptance testing and, if applicable, notification of acceptance from Customer, Provider will turn up the Service in accordance with the SOA, thereby establishing the Delivery Date.
- Service Outages.
- Unplanned Service Outages shall be reported immediately to the Customer contact identified on the SOA as the point of contact for outage reporting. Whenever possible, Provider will use its best efforts to reroute Customer Services at no cost to Customer.
- Planned Service Outages will only be performed following advance notice to Customer. Whenever reasonably possible, Provider will notify Customer no less than five (5) business days prior to any scheduled Planned Service Outage. The Planned Service Outage will have a beginning and ending time and a scope of activities to occur during the Planned Service Outage.
- Termination. Either party may terminate a SOA for cause (“Cause”) as follows:
- Breach. Either Party may terminate a SOA in its entirety immediately on written notice to the other Party in the event that the other Party materially breaches these General Terms or a SOA and fails to cure such breach within thirty (30) calendar days (ten (10) calendar days in the event of non-payment of any money due) after written notice from the non-breaching Party.
- Termination Charges. If Customer cancels a Service following Provider’s acceptance of the SOA or Revised SOA or Service is terminated by Provider as a result of a failure to pay by Customer pursuant to Section 9.1 of these General Terms, Customer shall pay Provider an early termination charge equal to 100% of the monthly rate for the Service cancelled multiplied by the months remaining in the term. Early Termination Charges for an individual service are billable at the time of termination of the individual service and due within thirty (30) days after the bill date.
- Insolvency Event. Either Party may terminate an SOA (or multiple SOAs) immediately upon written notice to the other Party in the event that the other Party makes an assignment for the benefit of creditors, dissolves or liquidates, has a receiver or trustee appointed over it or any of its assets, is declared insolvent or bankrupt, or a voluntary or involuntary petition is filed in any court of competent jurisdiction under the applicable bankruptcy laws, including for liquidation or reorganization, and such petition is not withdrawn within sixty (60) calendar days after filing.
- Regulatory Event. Either Party may terminate an SOA (or multiple SOAs) upon notice to the other Party if the passage or adoption of any law, rule or regulation (which shall be cited in such termination notice) would make it unlawful to perform its obligations under these General Terms, with the effective date of such termination being no earlier than the date on which any such law, rule or regulation results in such unlawful performance; providing, however, that neither Party will be permitted to terminate an SOA (or multiple SOAs) pursuant to this Section 4 unless and until the Parties have made a good faith effort to modify an SOA (or multiple SOAs) in a commercially reasonable manner so that it is no longer unlawful for the terminating Party to perform its obligations hereunder.
- Survival. The obligations of the Parties under these General Terms that, by their nature, survive termination of an SOA (or multiple SOAs) will so survive. Without limiting the foregoing, the following provisions will survive termination or expiration of an SOA (or multiple SOAs): Section 7 and Sections 12 through 16.
- Regulatory Requirements. Provider will be responsible for securing and maintaining, at its cost, all required rights, such as franchise rights, licenses, permits, approvals, authorizations, rights-of-way, and other governmental or third-party rights that may be required to offer Services in accordance with the terms set forth in this SOA (or multiple SOAs).
- Representations and Warranties. Provider represents and warrants to Customer and Customer represents and warrants to Provider that: (i) it has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization; (ii) it has the full right, power and authority to execute, deliver and perform its obligations imposed by these General Terms and the SOA; (iii) its execution of and performance under the SOA does not and will not violate any applicable existing regulations, rules, statutes or court orders of any local, state or national government agency, court or body of any country or any contract or other agreement to which it is subject; (iv) its execution and performance of the SOA under these General Terms does not and will not violate or cause a conflict with or default under any other binding contract or agreement to which it is subject; (v) when executed and delivered by it, these General Terms will constitute the legal, valid and binding obligation of it, enforceable against it in accordance with its terms, subject to applicable bankruptcy and other laws that affect the rights of creditors generally; and (vi) to the best of its knowledge, there are no third-party claims that will prevent it from fulfilling its obligations under these General Terms.
- Disclaimer of Warranties. Except as expressly set forth in THESE GENERAL TERMS, each party hereby disclaims and expressly excludes all warranties, express, implied, statutory or otherwise, including any implied warranties of merchantability or fitness for a particular purpose, noninfringement or title or any warranty arising by usage of trade, course of dealing or course of performance.
- Mutual Indemnification. Each Party (the “Indemnifying Party”) shall indemnify the other Party, its Affiliates, and their respective officers, directors, employees, shareholders, consultants, agents and representatives, (the “Indemnitees”) against and hold them harmless from any losses suffered or incurred by any such Indemnitee, whether in connection with a claim, suit or action instituted by a third party or otherwise, including without limitation any forfeitures or other sanctions imposed by a Governmental Authority, to the extent arising from or in connection with (i) any breach of any representation or warranty of the Indemnifying Party contained in these General Terms or (ii) any breach of any covenant of the Indemnifying Party contained in these General Terms.
- Notice, Cooperation. In any case in which indemnification is sought hereunder the Party seeking indemnification will (i) promptly notify the other Party in writing upon the initiation of any claim or litigation to which the indemnification relates; (ii) afford the indemnifying Party the opportunity to participate in, and, at the option of such indemnifying Party, to control, any compromise, settlement, litigation or other resolution or disposition of any such claim; and (iii) fully cooperate with the reasonable requests of the Indemnifying Party in its participation in, and control of, any compromise, settlement, litigation or other resolution or disposition of any such claim; provided that the Indemnifying Party may not enter into any settlement that has an adverse impact on the indemnified Party without the Indemnified Party’s consent, which consent may not be unreasonably withheld.
- Limitation of Liability. Neither Party will be liable to the other for indirect, consequential, special or punitive damages, whether based in contract or tort (including negligence, strict liability or otherwise) and whether or not advised of the possibility of such damages.
- Confidential Information.
- Unless otherwise expressly authorized by these General Terms, each Party agrees to maintain in confidence all of the other Party’s Confidential Information in connection with these General Terms as well as all Confidential Information which it obtains or has access to in the course of the transactions contemplated hereby. Each Party will be responsible for compliance by its employees and agents with the terms of this Section, and each Party will be responsible for any breach of these provisions by such employees and agents.
- Information will not be deemed to be Confidential Information to the extent such information: (i) is disclosed pursuant to a subpoena or court order, in which event the receiving Person will give prior written notice to the disclosing Person of such disclosure as soon as practicable and will cooperate in using all reasonable efforts to obtain a protective order or equivalent; (ii) is already legitimately known to the receiving Person at the time of receipt or disclosure, as evidenced by written records made prior to such disclosure, or subsequently becomes publicly available without any fault of the receiving Person or is already publicly available prior to receipt or disclosure; or (iii) is independently developed or formulated by the receiving Person or its related companies without violating an obligation of nondisclosure.
- Force Majeure. Neither Party will be liable for service interruptions, delays, failures to perform, damages, losses or destruction, or malfunction of any equipment or any consequence thereof caused or occasioned by, or due to fire, flood, wind storms, water, the elements, acts of God, war and threat of imminent war, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, supply chain disruptions causing shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond the affected Party’s reasonable control. The Party so delayed or prevented from performing will provide prompt notice of such event to the other Party and will exercise good faith efforts to remedy any such cause of delay or cause preventing performance.
- Governing Law and Dispute Resolution. These General Terms will be construed and enforced in accordance with the laws of the State of Arizona, United States of America, except that body of law concerning conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these General Terms. The parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims related to these General Terms. Failing such amicable settlement, any controversy, claim, or dispute arising under or relating to these General Terms, including the existence, validity, interpretation, performance, termination or breach thereof, shall finally be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association (“AAA”). There will be one (1) arbitrator jointly appointed, but if the parties are unable to agree on a single arbitrator within fifteen (15) days after the arbitration is initiated, the arbitrator shall by appointed by the AAA. The language of the arbitration shall be English. The Arbitrator will not have the authority to award punitive damages to either Party. Each Party shall bear its own expenses, but the Parties will share equally the expenses of the Arbitrator and the AAA. These General Terms will be enforceable, and any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction. The arbitration will be held in Phoenix, Arizona, USA or some other location mutually agreed upon by the Parties.
- Independent Contractors. Nothing in these General Terms will be deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, or business entity of any kind involving Provider and Customer. The Parties expressly agree that they are acting hereunder as independent contractors and under no circumstances will any of the employees of one Party be deemed the employees of the other for any purpose.
- Assignment; Binding Effect. An SOA inclusive of these General Terms may not be sold, assigned or transferred by either Party without the prior written consent of the other Party, except that either Party may assign an SOA inclusive of these General Terms without consent in connection with a merger, sale or other transfer of substantially all of the assets of the business unit to which an SOA relates. All SOAs, inclusive of these General Terms will inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
- General Terms. Any Service Order Agreements, processed pursuant to these General Terms, contain the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, whether written or oral. The failure of a Party to insist upon strict adherence to any term of a SOA will not be considered a waiver of such Party’s rights or deprive such Party of the right thereafter to insist upon strict adherence to that term or any other term. The section headings of these General Terms are for convenience only and shall not be used to interpret these General Terms.
- Availability of General Terms and Conditions. These General Terms and Conditions contain general provisions that apply to all GSW Telecom Services and are available on the GSW Telecom website (https://gswtelecom.com/ ). These General Terms and Conditions will be updated as needed by Provider and when updated notice will be provided to Customer through hardcopy or electronic notice delivery.