MASTER SERVICE AGREEMENT
This Master Service Agreement (“Agreement”), effective as the proposal signature date (“Effective Date”), is between GSW Telecom, L.L.C. (“GSW Telecom”) with a principal place of business at 6400 E. Grant Rd. Ste. 100, AZ and (“Customer”) with its principal place of business stated on the proposal (“Customer”). GSW Telecom and Customer may hereinafter be collectively referred to as “Parties” and individually as a “Party.”
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.
Services. The elements, components and services provided by GSW Telecom to Customer under Section 3 of this Agreement.
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 GSW Telecom 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 cause by scheduled maintenance or planned enhancements or upgrades to GSW Telecom’s Network or the network on its supplier, as set forth in Article 8.
Point of Demarcation. The interface between GSW Telecom and terminal equipment designated by Customer. Such point will be identified in the Service Order and designate the point at which GSW Telecom’s responsibility to provide Service ends.
PSTN. The Public Switched Telephone Network.
Revised Service Order. For purposes of this Agreement, Revised Service Order shall have the same meaning as Service Order once executed by the Parties.
Service Order. An order for Service issued pursuant to this Agreement, and unless otherwise agreed, each Service Order shall, using Exhibit A, 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. An order may be sent by email or facsimile or other electronic means.
Unplanned Service Outage. An unexpected disruption or degradation of Service and/or Services and addressed in Article 8.
- Term. This Agreement will commence on the Effective Date and, unless terminated sooner in accordance with Section 9 (Termination), will continue in effect for three (3) years from the Effective Date above (“Initial Term”). After expiration of the Initial Term, the Agreement will continue on a month-to-month basis unless terminated by thirty (30) days’ prior written notice by either Party or as otherwise provided in this Agreement. During the foregoing period and until such termination, Service Orders may be placed as otherwise provided in the Agreement. All Service Orders shall be governed by this Agreement and this Agreement shall continue in full force and effect until all Service Orders executed under this Agreement have expired.
- Roles and Responsibilities of Customer. Customer may purchase Services on a nonexclusive basis, pursuant to the terms and conditions set forth in this Agreement. This Agreement does not by itself order any Service. Customer shall order Service(s) by submitting a Service Order to GSW Telecom in the form attached as Exhibit A. Customer shall pay GSW Telecom for the Services as provided in Section 6.
- Roles and Responsibilities of GSW Telecom
- Services. GSW Telecom will provide the Services described with particularity in the Service Order form attached.
- Network Management and Operations. GSW Telecom will provide Customer a 24x7x365 Point of Contact and support for all Services purchased under this Agreement.
- See Exhibit A.
- Scope of the Agreement; Service Orders and Provisioning of Service.
- After Customer submits a Service Order to GSW Telecom, the FOC Date shall be confirmed via written acknowledgment by GSW Telecom within 3 (three) business days of Service Order receipt.
- Customer may postpone the FOC Date of a pending Service Order, without liability for such change, by providing written notice to GSW Telecom at least three (3) business days prior to the FOC Date. Said extension of the FOC Date of a Service Order or cumulative extension of said Service Order 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 GSW Telecom at least five (5) business days prior to the FOC Date; provided, however, that in the event GSW Telecom has incurred construction expenses (non-recurring charges) due to a custom design for Customer, then Customer shall reimburse GSW Telecom for such reasonable actual expenses.
- Payment for Services.
- Charges for Services. Charges specified in each applicable order, including all monthly recurring charges, non-recurring charges, will accrue to Customer on beginning on the Delivery Date. Pricing for services shall not exceed the price set forth on the order. 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. GSW Telecom will invoice Customer within ten (10) days for 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 this Agreement 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 paid under this Agreement do not include any taxes, fees, levies, imposts, duties, charges or withholdings of any nature (collectively, “Taxes”) imposed on GSW Telecom by any Governmental Authority. All payments required to be made to GSW Telecom under this Agreement 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.
- Equipment, Installation and Acceptance.
- GSW Telecom will, at its expense, provide, install, operate, repair, maintain and control the equipment necessary to provide Service to Customer.
- Unless otherwise set forth in a Service Order, GSW Telecom 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
- In the event GSW Telecom’s equipment is installed at any Customer location pursuant to this Agreement, such equipment will be used exclusively for the purpose of providing Service pursuant to this Agreement. However, GSW Telecom 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 this Agreement or a Service Order as otherwise provided in this Agreement, GSW Telecom will, at GSW Telecom’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 GSW Telecom has not removed its equipment following ninety (90) days notice to GSW Telecom, Customer may disconnect GSW Telecom’s equipment, return it to GSW Telecom, and invoice GSW Telecom for actual costs associated with such removal. Likewise, if Customer equipment remains on GSW Telecom premises or attached to GSW Telecom equipment following termination of this Agreement, Customer may, following ninety (90) days notice to Customer, remove from GSW Telecom 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 questi GSW Telecom 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, GSW Telecom will turn up the Service in accordance with the Service Order, thereby establishing the Delivery Date.
- Service Outages
- Unplanned Service Outages shall be reported immediately to the Customer contact identified on the Order as the point of contact for outage reporting and as further set forth on Exhibit A. Whenever possible, GSW Telecom 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, GSW Telecom 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 period
- Termination. Either party may terminate the agreement for cause (“Cause”) as follows:
- Breach. Either Party may terminate this Agreement in its entirety immediately on written notice to the other Party in the event that the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) calendar days’ (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 GSW Telecom’s acceptance of the Service Order or Revised Service Order or Service is terminated by GSW Telecom as a result of a failure to pay by Customer pursuant to Section 9.1 of this Agreement, Customer shall pay GSW Telecom 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 this Agreement 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 this Agreement 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 this Agreement, 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 this Agreement pursuant to this Section 4 unless and until the Parties have made a good faith effort to modify this Agreement 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 that, by their nature, survive termination of this Agreement will so survive. Without limiting the foregoing, the following provisions will survive termination or expiration of this Agreement: Section 7.5 and Sections 12 through
- Regulatory Requirements. GSW Telecom 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 Agreement.
- Representations and Warranties. GSW Telecom represents and warrants to Customer and Customer represents and warrants to GSW Telecom 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 under this Agreement; (iii) its execution of and performance under this Agreement 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 under this Agreement 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, this Agreement 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 (vii) to the best of its knowledge, there are no third party claims that will prevent it from fulfilling its obligations under this Agreement.
- Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS AND EXPRESSLY EXCLUDES ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NONINFRIGEMENT 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 this Agreement or (ii) any breach of any covenant of the Indemnifying Party contained in this Agreement.
- 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 this Agreement, each Party agrees to maintain in confidence all of the other Party’s Confidential Information in connection with this Agreement 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, 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.
- Notices. All notices required or permitted hereunder will be given in writing addressed to the Parties as set forth below and will either be (i) personally delivered, (ii) transmitted by postage prepaid certified mail, return receipt requested, (iii) transmitted by nationally-recognized private express courier, or (iv) sent by facsimile transmission (with confirmation of transmission), and will be deemed to have been given on the date of delivery if delivered personally or by facsimile, five days after deposit in mail, or two days after deposit with an express courier. Either Party may change its address or facsimile number for purposes hereof by written notice to the other. The addresses and facsimile numbers for the Parties are as follows:
If to GSW Telecom:
Atten: Les Smith
6400 E. Grant Rd. Ste. 100
Tucson, Arizona 85715
- Governing Law and Dispute Resolution. This Agreement 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 this Agreement. The parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims related to this Agreement. Failing such amicable settlement, any controversy, claim, or dispute arising under or relating to this Agreement, 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. The Agreement 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 this Agreement will be deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, or business entity of any kind involving GSW Telecom 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. Neither Party will be entitled to assign its rights or delegate its obligations under this Agreement to any other Person without the prior written consent of the other Party, except that either Party may assign this Agreement without consent in connection with a merger, sale or other transfer of substantially all of the assets of the business unit to which this Agreement relates. This Agreement will inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
- General Terms. This Agreement, and any Service Order processed pursuant to this Agreement, 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. Any amendment or modification of this Agreement will not be binding unless in writing and signed by the Parties hereto. The failure of a Party to insist upon strict adherence to any term of this Agreement 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 this Agreement are for convenience only and shall not be used to interpret any term of this Agreement.