Master Services Agreement
These General Terms and Conditions together with all Supplements, Order Form(s), Exhibits and other addenda attached hereto from time to time constitute the Master Products and Services Agreement (“Agreement”) which is effective as of the last date of execution below (“Effective Date”) by and between Digital Management Partners, LLC. (“Company”), an Illinois Limited Liability Company, and Customer. Company and Customer are collectively referred to as the “Parties” or individually as a “Party”.
“AUP” means the Company’s Acceptable Use Policies as published on the Company’s website from time to time, and which are incorporated into this Agreement by reference. “Commencement Date” means the date upon which Company begins to provide an ordered Product or Service as more fully described in the relevant Supplement or Order Form. Customer Location” refers to a location designated in an Order Form for connection to Company Network. “Company Network” means, collectively, the IP network, system capacity and related facilities (including, without limitation, routers, switches and communication channels) owned or controlled by Company to the extent it applies to the Product or Service. “Order Form” refers to any, mutually executed, product order (“Product Order”), service order (“Service Order”), schedule (“Schedule”), or statement of work (“Statement of Work”) to these General Terms and Conditions and respective Supplement, detailing the Products or Services, the Term, Customer charges, the estimated Commencement Date and any other relevant terms agreed upon by the Parties. “Products or Services” means the products or services provided by Company (including, without limitation, Leased Fiber, In-Building Fiber, Co-location, Bandwidth, Managed Services, Managed Wavelengths and Capacity) to Customer. “Supplement” means a fully executed supplement to these General Terms and Conditions each containing additional terms and conditions that govern the related Products or Services provided by Company. “Term” means the period of time in which Company provides Products or Services to Customer pursuant to an Order Form. “Termination for Cause” means the immediate suspension or termination of service to a Customer pursuant to either this Agreement, corresponding Supplements, or any outstanding Order Form resulting from any reported violation of the Company’s AUP, or for defaulting upon any obligation of payment arising pursuant to this Agreement or any other outstanding Order Form of the Customer’s. “Grace Period” refers to a period of time in which the Company agrees to refrain from charging interest on a disputed invoice.
2. STRUCTURE OF AGREEMENT
From time to time, the Parties will execute one or more Supplement(s) and Order Forms for Company to provide Products or Services, each of which is automatically incorporated into this Agreement and subject to these General Terms and Conditions. Likewise, the Company reserves the right to amend its AUP from time to time with prior notice to the Customer, and the parties hereby specifically agree that any such amendments to said AUP shall be binding upon the Customer.
3. INVOICING AND PAYMENT
3.1. Installation Charge. If a non-recurring installation charge or setup fee (“Installation Charge”) is specified in an Order Form, Company will invoice Customer for and Customer will pay such Installation Charge, upon the effective date of the Order Form (“Order Form Effective Date”). If the Installation Charge is “estimated”, Customer agrees to pay an initial amount, so specified in such Order Form, on the Order Form Effective Date and the remaining balance of the “actual” Installation Charge upon the Commencement Date. The balance of the actual Installation Charge will be invoiced by Company and paid by Customer within five (5) days of such invoice, unless otherwise noted on the invoice itself.
3.2. Recurring Charge. If a recurring charge (“Recurring Charge”) (e.g. Monthly Charge, Quarterly Charge, Annual Charge, etc.) is specified in an Order Form, Company will invoice Customer for and Customer will pay the Recurring Charge in advance for each period and within five (5) days from the date of such invoice, unless otherwise noted on the invoice itself. Company will begin to invoice the Recurring Charge on the Commencement Date. Invoices for partial months will be pro-rated. Multiple types of Recurring Charge may be set forth in the Order Form. For purposes of this definition, Recurring Charges do not include O&M Charges.
3.3. Prepayment. Any prepayment (“Prepayment”) specified in an Order Form, is payable upon the Order Form Effective Date. If a Prepayment is for a portion of a Term, the amount of such Prepayment will be applied as a credit to the final Recurring Charges at the end of such Term.
3.4. O&M Charges. If operation and maintenance charges (“O&M Charge”) are specified in the Order Form, Company will invoice Customer for and Customer will pay such O&M Charge beginning on the Commencement Date and upon each anniversary of the Commencement Date during the Term of the Order Form, and within five (5) days from the date of such invoice, unless otherwise noted on the invoice itself. Although O&M Charges are recurring, for purposes of this definition, O&M Charges are not included in the definition of Recurring Charges.
3.5. Additional Charges. If applicable, Company will invoice Customer and Customer will pay invoices for any additional charges for Products or Services which are specified in an Order Form.
3.6. Applicable Taxes. Company will invoice Customer and Customer will pay any and all applicable taxes (“Applicable Taxes”) as more fully described in Section 4, below, with respect to specific Customer charges.
3.7. Late Payments. All invoices must be paid in accordance with their terms without set off or deduction, unless a dispute has been opened in writing with the company prior to the monthly renewal date. Following submittal in writing of the disputed charge(s) to the Company, a grace period of (2) weeks will follow the Customer’s recurring billing date, in which, the company pledges to acknowledge and act, according to their discretion, upon the dispute. Late payments failing to provide a written dispute prior to the Customer’s renewal date with be evaluated at the Company’s discuretion and will accrue interest on the unpaid sum as of at the lesser of (i) the highest legal rate of interest permitted in the State of Illinois or (ii) one and one-half percent (1.5%) per month.
3.8. U.S. Dollars. Unless otherwise specified on an Order Form, all payments must be made by Customer to Company in U.S. dollars.
3.9. Consumer Price Index. The Recurring Charge and O&M Charge may be increased each year during the Term by the percentage increase, if any, in the Consumer Price Index – Urban Wage Earners and Clerical Workers (U.S. City Average, All Items, Base 1982-1984 equals 100) as published by the United States Department of Labor, Bureau of Labor Statistics (the “Index”). The Index for the calendar month which is four (4) months prior to the commencement Date will be compared with the Index for the calendar month which is four (4) months prior to each anniversary of the Commencement Date during the Term and the Recurring Charge will be increased in accordance with the percentage increase, if any, between such Indexes.
3.10. Early Termination Charges. If an Order Form is terminated prior to expiration by reason of: (i) Customer termination, if such termination is not an exercise of Customer’s rights or remedies under the Agreement, or (ii) a Customer Event of Default for failure to pay any payment, as provided herein, or (iii) Termination for Cause; in addition to all other charges then due and owing, Customer agrees to immediately pay an “Early Termination Charge” to Company. The Early Termination Charge is a sum equal to the net present value of the remaining Recurring Charges under all terminated Order Forms. If the Recurring Charges (or a component of the Recurring Charges) are fully prepaid, the Early Termination Charge is equal to the unamortized portion of such prepayment as of the date of termination. Customer acknowledges and agrees that the Early Termination Charge reflects a reasonable estimate of the damages incurred by Company as a result of an early termination, and is not a penalty. Notwithstanding the foregoing, Company may seek all other available remedies in law and in equity in the case of Customer’s default resulting from any reason. In the event that litigation is necessary to obtain payment, the Customer agrees that it shall also be liable to the Company for all costs associated with litigation, including the Company’s court costs and attorney’s fees incurred. The failure to timely pay Early Termination Charges for any Order Form shall lead to the immediate termination of service on all outstanding Order Forms, all of which shall be accelerated, and all obligations of payment shall become immediately due and owing pursuant to the terms and provisions of this Section 3.10.
4. APPLICABLE TAXES
4.1. “Applicable Taxes” means taxes and fees imposed on Company by governmental authorities in connection with the Products or Services including, but not limited to, any sales, use, gross receipts, federal excise, privilege, property, public right-of-way, telecommunications franchise, privilege, property, occupational and similar taxes and surcharges based upon the gross revenues received from or by Customer or assets of Company made available to Customer. To the extent that taxes and fees are generally assessed against Company’s fiber optic cable assets (without reference to gross revenues received from or by Customer or assets made available to Customer), such taxes and fees will be apportioned to Customer based upon the ratio of the number of Leased Fibers on such Company fiber optic assets to the total number of fiber strands leased on such Company fiber optic cable assets. Notwithstanding the foregoing, Applicable Taxes do not include, any fee or tax which Customer otherwise pays directly to a state or local jurisdiction with respect to the gross revenues received from or by Customer or assets of Company made available to Customer; and any income, estate, transfer or corporate franchise tax levied on or assessed against Company.
4.2. Customer will be invoiced by Company for any and all of the foregoing Applicable Taxes. Notwithstanding the foregoing, Customer may provide Company with a certificate evidencing Customer’s exemption from payment of or liability for any Applicable Taxes.
4.3. Customer is solely responsible for calculating and remitting any and all assessments, including but not limited to franchise fees, license fees, right-of-way fees, taxes and any other assessment against Customer for Customer’s use of the Products or Services (collectively, Assessments”) with respect to providing service to end-user customers or to the extent Customer is required to calculate such Assessments. Assessments may be made by any governmental, quasi-governmental agency or regulatory body and Company will not direct or notify Customer to pay any Assessments, and is not directly or indirectly responsible in any way for Customer’s remittance of Assessments.
5.1. This Agreement commences on the Effective Date, and continues through the latest expiration of all Order Form Term(s) subject to this Agreement, unless earlier terminated as provided herein.
5.2. The Term for each Order Form begins on the Commencement Date of the related Product or Service and remains in effect until the expiration of the initial period so specified. Upon expiration of the initial term, each Order Form will automatically renew for additional periods of one (1) year unless one Party provides the other written notice that it is terminating such Order Form not less than sixty (60) days’ prior to the end of the Term then in effect. Notwithstanding the foregoing, Customer acknowledges and agrees that Company may terminate a Product or Service without notice any time during or after the initial Term if underlying equipment leases or third party commitments expire.
The following events are “Events of Default”, the occurrence of which gives the non-defaulting Party the right to terminate the Agreement or affected Order Form(s) by written notice following the expiration of any stated cure periods and pursue its remedies under the Agreement:
a. Customer violates any provision of the Company’s AUP;
b. Customer fails to fully pay any of the payments (including Early Termination Charges) required hereunder, or pursuant to any other outstanding Order Forms that the Customer may have with the Company, within five (5) days after receipt of written notice of such failure.
c. Except as provided in clause (b), above, the breach of any material term or condition of this Agreement (including Order Forms) and such breach remains uncured thirty (30) days after delivery to the breaching Party of written notice of such breach;
d. The application for or consent to the appointment of a receiver, trustee or similar officer for it or any substantial part of its property or assets, or any such appointment is made without such application or consent by such Party and remains undischarged for a period of sixty (60) days; the filing of a petition in bankruptcy or a general assignment for the benefit of creditors;
e. Customer defaults under the terms of any other agreement or Order Form between the parties, whether such other agreement is executed contemporaneously, prior, or subsequent to the execution of this Agreement.
If Customer is in default, as set forth above, then, after expiration of the cure period, Company may, in addition to any other remedies that it may have under this Agreement or by law, suspend, disconnect and/or repossess any Products or Services, provided, however, that Customer will remain responsible to perform its obligations hereunder.
7. TERMINATION FOR CAUSE.
Pursuant to the terms and provisions of the Company’s AUP, this Agreement, any corresponding Supplements, or Order Forms , the Company shall have the right to suspend or terminate service on the Customer’s associated Order Forms for any reported violation of the AUP (a “Termination for Cause”). Further Company shall have the right to suspend or terminate service on the Customer’s associated Order Forms for any default of this agreement, any corresponding Supplements, or of any outstanding Order Form, shall constitute an immediate “Termination for Cause”.
8. REPRESENTATIONS AND WARRANTIES
8.1. Company warrants that any Products and Services to be provided to Customer will be at a professional level of quality conforming to generally accepted industry standards and in compliance in all material respects with all applicable laws and regulations. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.2. Each Party represents and warrants to the other that (i) it is duly organized, validly existing and in good standing under the laws of the state of its organization, (ii) it has all requisite power and authority to enter into and perform its obligations under this Agreement and all Order Forms, (iii) it will comply with all applicable federal, state and local laws, statutes, rules and regulations in connection with the provision and use of the Products and Services and (vi) this Agreement and all Order Forms, when executed, are the legal, valid and binding obligation of such Party.
8.3. Customer acknowledges that Company has no ability to determine whether the communications traffic carried by the Products or Services utilizing the Company Network is jurisdictionally interstate or intrastate. Customer represents and warrants that the communications traffic to be carried by the Company Network shall be jurisdictionally interstate, pursuant to the Federal Communications Commission’s mixed-use “10% Rule”(47 CFR 36.154, 4 FCC Rcd. 1352). Should Customer’s use of the Company Network ever become jurisdictionally intrastate, the provisioning of any related Product and Service may be subject to the jurisdiction of the relevant state Public Utilities Commission, subject to Company tariff(s) file with the relevant state Public Utilities Commission, and subject to certain taxes and fees imposed on intrastate transmissions. In the event the such Product or Service is subject to any such regulation or tariff(s), then this Agreement may be subject to such changes or modifications by the relevant state Public Utilities Commission as such Commission may, from time to time, direct in the exercise of its jurisdiction.
9. LIMITATION OF LIABILITY; INDEMNIFICATION
9.1. THE TOTAL LIABILITY OF EITHER PARTY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH AN ORDER FORM (EXCLUDING EARLY TERMINATION CHARGES (AS DEFINED IN THE RELATED SUPPLEMENT)) IS LIMITED TO AN AMOUNT EQUAL TO THE TOTAL CHARGES PAYABLE BY CUSTOMER DURING THE TERM SET FORTH THEREIN. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE OR LOST BUSINESS OPPORTUNITIES (WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY INTERRUPTION OR DEGRADATION OF SERVICE OR OTHERWISE), WHETHER FORESEEABLE OR NOT, EVEN IF A PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY TO CLAIMS OF CUSTOMER, WHETHER OCCASIONED BY ANY CONSTRUCTION, INSTALLATIONS, RELOCATIONS, SERVICE, REPAIR OR MAINTENANCE PERFORMED BY, OR FAILED TO BE PERFORMED BY COMPANY, OR ANY OTHER CAUSE WHATSOEVER, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR STRICT LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA OR TECHNOLOGY.
9.2. Company agrees to indemnify, defend and hold Customer, its officers, directors, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable attorney’s fees and expenses) by reason of any claims or actions by third parties against Customer for (i) bodily injury or death, and damage, loss or destruction of any real or tangible personal property, which third party
claims arise out of or relate to Company’s gross negligence or willful misconduct or (ii) infringement or misappropriation by Company of any intellectual property rights under this Agreement.
9.3. Customer agrees to indemnify, defend and hold Company, its officers, directors, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable attorney’s fees and expenses) by reason of any claims or actions by third parties against Company for (i) bodily injury or death or damage, loss or destruction of any real or tangible personal property, which third party
claims arise out of or relate to Customer’s gross negligence or willful misconduct, (ii) infringement or misappropriation by Customer of any intellectual property rights under this Agreement, or (iii) Customer’s or its customer’s use of the Products or Services, including without limitation, defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity, or spamming or any other tortuous or illegal conduct.
10. CONFIDENTIALITY; PUBLICITY
10.1. Confidentiality. Each Party agrees that the terms of this Agreement and all information furnished to it by the other Party, including maps, pricing, financial terms, network routes, design information, methodologies, specifications, locations or other information to which it has access under this Agreement, are deemed the confidential and proprietary information or trade secrets (collectively referred to as “Proprietary Information”) of the Disclosing Party and will remain the sole and exclusive property of the Disclosing Party (the Party furnishing the Proprietary Information referred to as the “Disclosing Party” and the other Party referred to as the “Receiving Party”). Each Party will treat the Proprietary Information and the contents of this Agreement in a confidential manner and, except to the extent necessary in connection with the performance of its obligations under this Agreement, neither Party may directly or indirectly disclose the same to anyone other than its employees on a need to know basis and who agree to be bound by the terms of this Section, without the written consent of the Disclosing Party. Information will not be deemed Proprietary Information if it (i) becomes publicly available other than through the actions of the Receiving Party; (ii) is independently developed by the Receiving Party; or (iii) becomes available to the Receiving Party without restriction from a third party. If the Receiving Party is required by a governmental or judicial law, order, rule, regulation or permit to disclose Proprietary Information, it must give prompt written notice to the Disclosing Party of the requirements of such disclosure and cooperate fully with the Disclosing Party to minimize such disclosure, and disclosure after such notice shall not be a breach hereof.
10.2. Publicity. Neither Party may issue any advertising or other publicity material using the other Party’s name or marks or describing in any way the terms of this Agreement without first receiving the other Party’s written consent as to form and content, which consent may not be unreasonably withheld, conditioned, or delayed.
Neither Party will assign or transfer its rights or obligations under this Agreement without the other Party’s prior written consent, except that either Party may assign this Agreement upon notice and without the other Party’s consent to a person, firm, corporation, partnership, association, trust or other entity (i) that controls, is controlled by or is under common control with the assigning Party or (ii) into which it is merged or consolidated or which purchases all or substantially all of its assets; provided that the assignee assumes all liabilities hereunder in writing prior to the effectiveness of such assignment. Any assignment or transfer without the required consent is void and is considered a material breach of this Agreement. Upon any permitted assignment, the assigning Party will remain jointly and severally responsible for the performance under this Agreement, unless released in writing by the other Party, and this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
12. FORCE MAJEURE
Neither party will be considered in breach of this Agreement nor liable under this Agreement for any delays, failures to perform, damages or losses, or any consequence thereof, caused by or attributable to an event of “Force Majeure,” which is defined as any cause beyond the reasonable control of the party claiming relief, including without limitation the action by a governmental authority (such as a moratorium on any activities related to this Agreement or changes in government codes, ordinances, laws, rules, regulations, or restrictions occurring after the Effective Date), third-party labor dispute, flood, earthquake, fire, lightning, epidemic, war, act of terrorism, riot, civil disturbance, act of God, sabotage, fiber cut caused by a third-party or failure of a third party to recognize a permit, authorization, right-of-way, easement, right, license or other agreement obtained by Company to construct and operate its facilities or network.
All notices, including but not limited to, demands, requests and other communications required or permitted hereunder (not including invoices) must be in writing and will be deemed given: (i) when delivered in person, (ii) one (1) business day after deposit with an overnight delivery service for next day delivery, or (iii) three (3) business days after deposit in the United States mail, postage prepaid, registered or certified mail, return receipt requested, and addressed to the recipient Party at the address set forth on the signature page hereof. In addition, Company may send Customer notices, including notices for default or termination, to Customer’s email address or facsimile as contained on Company’s customer contact list. Such email or facsimile notification is deemed delivered on the day sent unless returned to sender.
14.1. Governing Law; Venue. This Agreement will be interpreted and construed in accordance with the internal laws of the State of Illinois without giving effect to its principles of conflicts of laws. The parties hereby agree that proper venue for any action governing or construing the terms and provisions of this Agreement shall lie in the Court of Common Pleas of Cook County, Illinois.
14.2. Survival. The Parties’ respective representations, warranties, and covenants, together with obligations of indemnification, confidentiality and limitations on liability will survive the expiration, termination or rescission of this Agreement and continue in full force and effect.
14.3. No Third-Party Beneficiaries. The covenants, undertakings, and agreements set forth in this Agreement are solely for the benefit of and enforceable by the Parties or their respective successors or permitted assigns.
14.4. Relationship of the Parties. The relationship between the Parties hereunder is not that of partners or agents for one another and nothing contained in this Agreement may not be deemed to constitute a partnership, joint venture or agency agreement between them.
14.5. Remedies Not Exclusive. Except as otherwise expressly provided, the rights and remedies set forth in this Agreement are in addition to, and cumulative of, all other rights and remedies at law or in equity.
14.6. Headings; Severability. The headings in this Agreement are strictly for convenience and do not amplify or limit any of the terms, provisions or conditions hereof. In the event any term of this Agreement is held invalid, illegal or unenforceable, in whole or in part, neither the validity of the remaining part of such term nor the validity of the remaining terms of this Agreement will be in any way affected.
14.7. No Implied Waiver. No failure to exercise and no delay in exercising, on the part of either Party, any right, power or privilege hereunder will operate as a waiver, except as expressly provided herein.
14.8. Execution and Counterparts. This Agreement may be executed in counterparts, including by facsimile transmission, each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
14.9. Order of Precedence. If any conflict or contradiction exists between these General Terms and Conditions and a Supplement, the terms of a Supplement will control. If any conflict or contradiction exists between a Supplement and the terms of an Order Form, the terms of the Order Form will control. If any conflict or contradiction exists between these General Terms and Conditions and the terms of an Order Form, the terms of the Order Form will control.
15. ENTIRE AGREEMENT; AMENDMENT; EXECUTION
This Agreement, including all Supplements, Order Forms, Exhibits and addenda attached hereto is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior negotiations, understandings and agreements, whether oral or written. This Agreement may be amended only by a written instrument executed by the Parties.