MASTER SERVICES AGREEMENT
This Master Services Agreement (“MSA”) is incorporated into and made part of the “Services Contract” by and between 1Wire Fiber, LLC.,dba 1CXPro.com, (“1Wire”) and Customer. The term of this MSA shall be as set forth in the Services Contract and as set forth in this MSA.
1. DEFINITIONS/SCOPE. The Customer agrees to subscribe to the telecommunications services (the “Services”) offered by 1Wire (or corporate
affiliates/third parties under agreements with such) as described in the Services Quote and this MSA. Once the Service Quote has been signed by the Customer and countersigned by 1Wire it will then be collectively referred to as the Services Contract. This MSA may also be further supplemented by a Service Level Agreement (“SLA”), which, where applicable, is attached as Exhibit 1. The Services Contract, the MSA, and the SLA are collectively referred to as the “Agreement”. In the event of a conflict between the terms and conditions contained in this MSA and any of the schedules set forth in the Services Contract or the SLA, the terms and conditions of the Services Contract or SLA shall govern. 1Wire reserves the right to unilaterally amend all terms and conditions including pricing in response to regulatory changes or third-party costs
that are beyond the control of 1Wire that materially alter the feasibility or economics of the Services provided by 1Wire hereunder. Any costs associated with modifying or reprogramming Customer’s equipment to make it compatible with 1Wire-provided Service shall be paid by Customer. All offers are subject to credit approval.
2. TERM. Unless otherwise specified, the term of this MSA shall commence on the Service Activation Date (the “Effective Date”) and shall continue for the term stated in the Services Contract. The Service Activation Date is the actual date that Voice Services or Internet Access Services are activated by 1Wire and available for use by the Customer. Customers who decline term plan renewal but retain 1Wire Service will be converted automatically to a month-to-month agreement at the end of the current term. Month-to-month customers may not be entitled to prior term-plan pricing or discounts. In the event that this MSA is converted to a month-to-month term, the Services Contract and this
MSA may be terminated by either party on 30 days’ written notice. Notwithstanding anything to the contrary in the Services Contract, the term of the agreement between the parties, including this MSA, shall terminate on the same date as the Services Contract and/or SLA between the parties.
2.1 INTERNET SERVICES. If Internet Services are provided by 1Wire, any additional bandwidth increase that is requested by the Customer and agreed upon by the parties, the new specified term agreed to on the Services Contract will commence.
2.2 VOICE SERVICES. If Voice Services are provided by 1Wire, any additional Voice Services agreed upon by the parties during the first twenty-four months (24) of a thirty-six (36) agreement will be considered to be coterminous. Any additional Voice Service added after the first twenty-four (24) months of any thirty-six (36) month agreement, the term of this MSA will be automatically extended for an additional twelve (12) months for ALL SERVICES provided by 1Wire.
3. CHARGES AND EXPENSES OF COLLECTION. Charges under this MSA accrue from the Service Activation Date. 1Wire shall invoice, and Customer shall pay, within thirty (30) days following the date of any invoice (the “Due Date”), all monthly recurring charges for Services provided under this MSA, in addition to any federal and state taxes, surcharges and other governmental impositions (e.g., end user common line charges,
federal, state and local use, excise, sales and privilege taxes; surcharges related to universal service programs, emergency telephone service (911/E-911) and telecommunications relay service for the hearing impaired; payphone surcharges; and other similar surcharges for required programs).
3.1. If Customer is entitled to an exemption from any applicable taxes, Customer is responsible for presenting 1Wire with a valid exemption certificate (in a form reasonably acceptable to 1Wire). Customer shall also pay, as invoiced, for anyone-time charges for initial installations or other non-recurring charges, Customer shall pay the recurring charges monthly, in advance of the month in which Service is provided. All non-recurring charges or one-time charges will be invoiced separately on the Service Activation Date.
3.2. 1Wire shall not be responsible for wrong numbers made to Customers toll-free number or Local number.
3.3. All costs and expenses, including but not limited to attorneys’ fees, expenses, court costs, and service charges, incurred by 1Wire in connection with this MSA, including collecting payment for any amount due under the Services Contract or this MSA, (e.g., monthly recurring charges, one-time charges, early termination charges) shall be paid by the Customer.
3.4. For purposes of this MSA, payments are considered to be made when they are actually received by 1Wire. All accounts for Services shall be considered past due fourteen (14) days after the invoice date. Late payment charges will be billed from and after the Due date at the rate of 1.5% per month or the maximum lawful rate allowable under state law, whichever is lower.
3.5. If Customer reasonably disputes any portion of a 1Wire invoice, Customer must pay the undisputed portion of the invoice and submit written notice of the claim for the disputed amount. All claims (except those for Service Credits) must be submitted to 1Wire in writing within thirty days (30) from the date of the invoice for those Services. Customer waives the right to dispute any charges not disputed within such thirty-day (30) period. In the event that the dispute is resolved against Customer, Customer shall pay such amounts. Terms for billing periods, security deposits, and payment terms shall be amended to this MSA, and may be modified as necessary by 1Wire.
4. HARDWARE. In the event Customer leases hardware, including phones, handsets, or related equipment (the “Hardware”), Customer shall be responsible for repair or replacement cost for any loss, destruction or damage to the Hardware during the term of the MSA, including any extensions to the term. The Hardware being leased to Customer shall be identified and set forth in a separate schedule (the “Lease Schedule”), which shall be incorporated into this MSA.
4. DIRECTORY LISTING. For Local Line Services, Customer’s name, address, telephone number and any other information listed on the Services Contract are certified as correct by the Customer, and it is understood and agreed that Customer’s white page directory listing will appear using that information. It is Customer’s sole responsibility to inform 1Wire in writing of any change in the information at least 90 days prior to the local telephone directory issue date, which will be provided to Customer upon request. Customer releases 1Wire from any and all damages related to or arising out of telephone number publication or distribution and/or related to any error, including listing omissions or errors, pertaining to a directory listing.
5. 911/E-911. Prior to the Initialization of service, the Customer shall provide accurate End User name and address Information where the service will first be utilized (also known as “Registered Location”) for the purpose of updating the E-911 Data Base. If the End User address provided on a Service Order does not convert to a valid Master Street Address Guide (also known to as the “MSAG”) address for the End User locality, 1Wire will notify Customer and stop all processing of the order until Customer provides an MSAG-compatible address. Customer assumes all responsibility for the accuracy of the End User data that Customer provides to 1Wire for entry into the E-911 Data Base. Customer bears the responsibility to notify 1Wire of any changes to the End-User Data. Customer shall indemnify and hold 1Wire harmless from any claims, damages, or suits related to the accuracy of data provided by Customer for inclusion in the E-911 Data Base. Customer will provide (and update as necessary) 1Wire with accurate information related to E-911 Service, including, but not limited to: location of individual telephone stations and a description of Customer’s facilities, equipment and software for the Services. If 1Wire’s services may be used by the Customer from more than one physical location, 1Wire will provide Customer with a method of timely updating the information about Customer’s physical location. It Is Customer’s responsibility to update the physical location information if it differs from the prior Registered Location. Based upon the information supplied by Customer, 1Wire will provide the Services and advise the appropriate agencies as required. Customer acknowledges and understands that access to emergency services through 911 and E-911 calls is limited. Customer Acknowledges and understands that the Voice Service supports E-911 (where available) and that access to emergency service only if the service is operated from the service location of record and then only if subscriber has an active connection to the service, in accordance with the terms of the User Agreement. Subscriber acknowledges and understands that if there is a service outage (even related to extended Power outages) for any reason, such outage may prevent all voice service, including 911 dialing. Customer also acknowledges that it may take 1Wire up to thirty (30) days to get the correct address information to E-911 database and that during that time the E-911 database may have the wrong address information. Customer will indemnify and hold 1Wire, its affiliates, directors, officers, employees and agents from and against all claims, demands, actions, causes of action, damages, liabilities, losses and expenses (including reasonable attorneys fees) incurred as a result of any act or omission, representation or statement by Customer, directors, officers, or employees related to E-911 Services.
6. DEFAULT & TERMINATION. Customer or 1Wire may terminate the Services Contract and this MSA during a term only for cause. Prior to any party having ability to terminate for cause, a party shall be required to give written notice to the breaching party of any alleged breach and shall give the breaching party 30 days to cure such alleged breach. Notwithstanding the foregoing in the event of the failure by customer to make payment within thirty (30) days of the Due Date, 1Wire shall, at its option have the right, upon three (3) days prior written notice, to terminate the Services Contract previously provided under this MSA. For purposes of this MSA and subject to the exclusive remedies set forth in the SLA, “Cause” shall mean any uncured material breach of the terms of the Services Contract or this MSA. If 1Wire terminates this the Services Contract or this MSA WITH CAUSE or Customer terminates the Services Contract or the MSA WITHOUT cause, 1Wire is entitled to all collection expenses, attorney’s fees and costs.
6.1. For termination prior to installation of Service and after execution of the Services Contract and this MSA, early termination charges shall be the greater of three hundred dollar ($300.00) or those expenses incurred by 1Wire through the date of termination.
6.2. For termination after the Service Activation Date, Customer shall be obligated to pay an early termination charge equal to 75% of the Monthly Service amount for all monthly reoccurring charges stated on the Services Contract currently in place multiplied by the number of months remaining for the Services under the term of the Services Contract.
6.3. For all usage-based services Customer shall be obligated to pay an early termination charge using an average of the Customers previous six (6) months billing for all monthly usage-based service multiplied by 75%, then multiplied by the number of months remaining under the term of the Services Contract. In all cases for Termination by 1Wire WITH cause or by the Customer WITHOUT cause, in addition to the charges identified in Section 6.1 and 6.2 and 6.3 above, the Customer shall pay for Services actually received; repay 1Wire for any waived installation costs received in anticipation of a long-term agreement; and reimburse 1Wire for the costs of any equipment installed and not returned in “as new” condition. Customer agrees that 1Wire’s damages for early termination would be difficult to determine, and the termination charge(s) constitutes a reasonable estimate of appropriate liquidated damages and that such is not a penalty. In the event Customer cancels services in writing charges for services will stop billing at the end of the applicable billing period.
7. SERVICE OUTAGES AND SERVICE LEVEL AGREEMENT. Customer acknowledges, agrees, and understands that there is the possibility of an unscheduled, continuous, and/or uninterrupted period of time during which the Service does no conform to the SLA as set forth and maintained on 1Wire’s website (www.1Wirecom.com). Each Service Outage is treated as a discrete event; therefore, the credits specified in the SLA shall be given for each separate Service Outage. The number of minutes of separate Service Outages will not be cumulated to determine the percentage of credit. The failure of any Service to comply with the Services Contract, this MSA or the SLA shall not be deemed a breach of warranty or contract by 1Wire but may obligate 1Wire to provide Customer with outage credits pursuant to the terms and conditions of the SLA. NOTWITHSTANDING ANYTHING IN THIS MSA TO THE CONTRARY, CUSTOMER AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY, AND 1WIRE’S SOLE AND EXCLUSIVE OBLIGATION, IN THE EVENT OF ANY BREACH OF THE SERVICES CONTRACT, THIS MSA OR OF THE PERFORMANCE LEVELS IN THE SLA, OR FOR ANY OTHER REASON, SHALL BE FOR 1WIRE, AT ITS OPTION, TO REPLACE AND/OR REPAIR THE DEFECTIVE SERVICES, PROVIDED HOWEVER THAT IN THE EVENT ANY OF SERVICE INTERRUPTION THAT IS COVERED BY THE SLA, THEN, IN ADDITION TO THE FOREGOING, 1WIRE MAY BE OBLIGATED TO PROVIDE OUTAGE CREDITS IN ACCORDANCE WITH THE TERMS OF THE SLA. Customer shall allow 1Wire access to the Customer’s premises to the extent reasonably determined by 1Wire for the installation, inspection, and scheduled or urgent maintenance relating to the Service. 1Wire shall notify Customer at least two (2) business days in advance of any scheduled maintenance that will require access to the Customer premises or that may result in a material interruption of Service. Customer will be responsible for providing and maintaining, at its own expense, the level of power, heating and air conditioning necessary to maintain the proper environment for the network facilities on the Customer’s premises. In the event Customer fails to do so, Customer shall reimburse 1Wire for the actual and reasonable cost of repairing or replacing any equipment damaged or destroyed as a result of Customer’s failure. Customer will provide a safe place to work and comply with all laws and regulations regarding the working conditions on the Customer’s premises.
8. LIMITATION OF LIABILITY. 1WIRE MAKES NO WARRANTY, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED TO
CUSTOMER AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. IN CONSIDERATION OF THE RATES AND CHARGES SPECIFIED HEREIN AND THE DISCOUNT APPLIED IN CONNECTION THEREWITH, 1WIRE’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY AGAINST 1WIRE FOR THE FAILURE OF ANY SERVICES PROVIDED OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATION SHALL BE LIMITED TO A REFUND OF THE AMOUNTS PAID TO 1WIRE DURING THE PERIOD OF TIME (IN EXCESS OF 4 HOURS) THAT THE SERVICES CONTRACTED BY CUSTOMER FROM 1WIRE WERE INTERRUPTED OR NOT PROVIDED AS REQUIRED. IN NO EVENT SHALL 1WIRE BE HELD LIABLE FOR DEFECTS IN SERVICES RELATED TO CUSTOMERS LEGACY NETWORK INFRASTRUCTURE (EXISTING WIRING / ROUTERS / MODEMS / SWITCHES) IF CUSTOMER HAS CHOSEN TO USE THEM FOR SERVICE DEPLOYMENT. NO REFUNDS FOR HARDWARE PURCHASED THROUGH 1WIRE WILL BE GIVEN. IN NO EVENT SHALL 1WIRE BE LIABLE FOR SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, OR FOR LOST REVENUES, PROFITS, OR GOODWILL OF ANY KIND, WHETHER OR NOT 1WIRE HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES OR WHETHER SUCH DAMAGES COULD HAVE BEEN OR ACTUALLY WERE CONTEMPLATED BY THE
PARTIES. 1WIRE MAKES NO WARRANTIES REGARDING ANY PRODUCTS OR SERVICES PROVIDED OR INSTALLED ON CUSTOMERS BEHALF, BUT 1WIRE
SHALL, WHEN POSSIBLE, ASSIGN TO CUSTOMER THE BENEFITS OF ANY WARRANTIES, OR SIMILAR PROTECTIONS PROVIDED TO 1WIRE BY ITS
VENDORS OR SUPPLIERS. REMEDIES UNDER THIS MSA ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED HEREIN.
9. FRAUD. Customer is responsible for all charges attributable to Customer incurred respecting Service, even if incurred as the result of fraudulent or unauthorized use of Service; except Customer shall not be responsible for fraudulent or unauthorized use by 1Wire or its employees.
10. FORCE MAJEURE. If performance by 1Wire of any obligation under the Services Contract or this MSA is prevented, restricted or interfered with by causes including without limitation failure or malfunction of Customer-supplied equipment, acts of God, explosions, vandalism, cable cut, storms, fires, floods or other catastrophes, power failure, national emergencies, insurrections, riots, wars, strike, lockouts, boycotts, terrorism, work stoppages or other labor difficulties, or any law, order, regulation or other actions of any governmental authority, agency, instrumentality, or of any civil or military authority, then 1Wire shall be excused from such performance on a day-to-day basis to the extent of such restriction or interference. 1Wire shall use reasonable efforts under the circumstances to avoid or remove such causes of nonperformance with reasonable dispatch.
11. ADDITIONAL PROVISIONS. In the event of any conflict between this MSA and the terms and conditions of any SLA and/or Schedule, the order of precedence is as follows: (1) the SLA, (2) this MSA, and (3) the Services Contract. In addition to any provisions that by their nature would survive, Sections 4, 5, 7, and 8 shall survive termination, cancellation or expiration of this MSA.
12. INDEMNIFICATION. Customer shall indemnify, defend and hold harmless 1Wire, its employees and agents, from any and all losses, costs, damages, liabilities, actions, causes and action and expenses, including reasonable attorneys fees, arising out of, in whole or in part, directly or indirectly, as a result of or attributable to the use of the Services by Customer or any other person or party including any claims for libel, slander, or infringement of copyright or trademark.
13. 800/LOCAL NUMBERS. Customer acknowledges that Customer shall not own, nor have any proprietary interest in, any In-bound, toll free/local number and, further, that a reservation of an in-bound, toll free/local number shall not constitute, nor be construed, as a guarantee that the Customer will be assigned a requested in-bound, toll free/local number. The Customer shall not be entitled to rely upon, use or otherwise advertise or publicize an in-bound, toll free/local number until the Customer’s credit is approved, in writing, by a representative authorized by 1Wire to approve such credit and the Customer completes a test call(s) to the satisfaction of 1Wire.
14. 1WIRE Acceptable Use Policy. Customer hereby acknowledges that Customer has read, and is familiar with, 1Wire’s Acceptable Use Policy (“AUP”) identified on 1Wire’s website. Customer hereby acknowledges that any violation of the AUP by Customer shall entitle 1Wire to terminate or suspend the Services provided hereunder to Customer.
15. WAIVER. No purported waiver by either party of any default by either party of any term or provision contained in the Services Contract, this MSA or the SLA shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving party. No such waiver shall in any event be deemed a waiver of any subsequent default under the same or any other term or provision contained herein.
16. ENTIRE AGREEMENT. The Services Contract, including this MSA, schedules, the SLA, Addenda, and any product-specific terms and conditions, constitutes the entire understanding between Customer and 1Wire and supersedes any prior agreements or understandings. There are no covenants, promises, agreements, conditions, or understandings, either oral or written, between them relating to the subject matter of this
MSA other than those set forth herein. No representation or warranty has been made by or on behalf of either party to this MSA (or any officer, director, employee, or agent thereof) to induce the other party to enter into this MSA or to abide by or consummate any transactions contemplated by any terms of this MSA, except representations and warranties expressly set forth herein. No alteration, amendment, change, or addition to the Services Contract, the MSA or the SLA shall be binding upon either party unless in writing and signed by the parties to be charged.
17. SUCCESSORS. Each and all of the provisions of this MSA shall be binding upon and inure to the benefit of the parties and, except as otherwise specifically provided in this MSA, their respective successors and permitted assigns. The Services Contract and this MSA may not be assigned by Customer without the prior express written consent of 1Wire.
18. CAPTIONS AND DEFINITIONS. The captions and section numbers appearing in this MSA are inserted only as a matter of convenience. They do not define, limit, construe, or describe the scope or intent of the provisions of this MSA. Any capitalized term not otherwise defined herein shall have the meaning set forth in the Purchase Agreement.
19. PARTIAL INVALIDITY. If any term or provision of the Services Contract, the MSA or the SLA, or the application thereof to any person, firm, corporation, or circumstance, shall be invalid or unenforceable, the remainder of those agreements, or the application of such term or provision to persons, firms, corporations, or circumstances other than those as to which it is held invalid, shall be unaffected thereby, and each term or provision of those agreements shall be valid and be enforced to the fullest extent permitted by law.
20. THIRD PARTIES. Nothing herein express or implied is intended or shall be construed to confer upon or give any person, other than the parties and their successors or permitted assigns, any rights or remedies under or by reason of this MSA.
21. LEGAL FEES. In the event of a dispute between the parties arising out of this MSA, the successful party shall be reimbursed by the other party hereto for all costs and expenses of such dispute including, but not limited to, reasonable attorneys’ fees.
22. GOVERNING LAW. The Services Contract and this MSA are executed in and shall be governed by and construed in accordance with the laws of the State of Utah.