Master Service Agreement
This Master Service Agreement (the “Agreement”), is between The Iserv Company, LLC (“Iserv”) and Customer, and sets forth the general terms and conditions under which Customer may purchase Iserv’s services (the “Services”). The Agreement includes by reference, (i) service orders, quotes, or proposals (however named) as submitted by Iserv and accepted by Customer as provided herein (each, a “Service Order”); and (ii) Acceptable Use Policy and other policies as posted on Iserv’s web site (the “Policies”).
1. Service Orders. Each Service Order shall include applicable service descriptions and fee schedules. By signing a Service Order (which need only be signed by Customer), Customer agrees to all of the terms of this Agreement, all Policies, and any ancillary terms described herein, which are incorporated by reference in each Service Order. In signing a Service Order, Customer further authorizes Iserv to obtain any credit information necessary and/or Customer proprietary network information necessary to provision the Service/s and to establish Customer’s account. Customer authorizes the release of its credit information from all third parties to Iserv and its affiliates. Iserv’s provisioning of the Service shall constitute acceptance of a Service Order. If there is no written Service Order, Iserv will provide the Services in accordance with the terms of the Agreement at Iserv’s then prevailing retail rates or at such other rates as to which Iserv and Customer may mutually agree in writing.
2. Use of Services, Hardware, and Software. Customer shall use all Services, including all hardware and software included as part of the Services, in accordance with all applicable laws, rules and regulations and in accordance with Iserv’s Policies. Iserv grants to Customer a personal, limited, non-transferable, revocable, non-exclusive license (without the right to sublicense or create derivative works) to use the hardware and software during the Term (defined herein) solely for Customer’s own internal use of the Services in accordance with this Agreement. Customer shall not copy, modify, resell or redistribute software or hardware, create or recreate the source code for any hardware or software, or re-engineer, reverse engineer, decompile, disassemble or attempt in any way to disable, deactivate or render ineffective the password protection in the hardware or software. Some hardware or software necessary to fully utilize the full functionality of the Services may require Customer to accept additional terms and conditions required by the third-party providers of such hardware or software. Customer agrees to comply with any such additional terms and conditions required for the Service. If, at any time after execution of a Service Order, Customer causes a delay in Service implementation, installation, or port dates, Customer shall be responsible for any additional costs and fees incurred by Iserv or Customer as a result of this delay. Iserv may interrupt Services for maintenance and other operational reasons. Except as provided in any applicable service level agreements, Customer shall not be entitled to receive any compensation for such interruptions. In the event of any inconsistency among the above referenced terms in the Agreement and in a Service Order, the terms of the Service Order shall govern and control.
3. Copyright and Trademark. All Services, software, information, documents, and materials on Iserv’s website or provided to Customer in connection with the Services offered hereunder are protected by trademark, copyright, patent, and other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) of Iserv and/or its suppliers are and shall remain the exclusive property of Iserv and/or its suppliers and nothing in this Agreement shall grant Customer the right or license to use any of such marks.
5. E911/911 Enabled Services. When Customer orders E911/911 enabled Services from Iserv, Customer must review and sign the E911 Acknowledgement attached to the applicable Service Order, which describe the limitations of such E911/911 enabled Services, before Iserv will provide the E911/911 enabled Services. Customer will hold Iserv, its employees, agents, directors, officers and affiliates (and their employees, agents, directors and officers), harmless for any claims, suits, demands, losses, damages, expenses (including reasonable attorneys and costs) or liability that may result from the actual or alleged failure of E911/911 enabled Services associated with applicable Iserv Services.
6. Customer Premises Equipment. To facilitate the provision of Services, Iserv reserves the right to require Customer, as a condition to receiving Service, to use customer premises equipment (“CPE”) supplied by Iserv. Customer’s use of such CPE may be included in the prices paid for Services, or such CPE may be purchased by Customer, or Iserv may lease the CPE to Customer at Iserv’s option. Risk of loss for the CPE passes to Customer upon shipment of the CPE and Customer shall at all times maintain sufficient insurance to cover the full replacement value of the CPE. Upon the expiration or termination of the Services, any unpurchased CPE shall be returned to Iserv by Customer (and at Customer’s expense) in good condition, reasonable wear and tear excepted. If Customer fails to return the CPE to Iserv within thirty (30) days of termination of the Services, Customer shall be charged the then current list price for the CPE.
7. Fees and Prices. Customer shall pay for all Services that Iserv provides to Customer. The relevant Service Order shall specify prices and associated fees that Customer shall pay for each Service during the Service Term; provided however, that such fees may not include taxes or other surcharges or shipping fees. Prices are fixed for the Initial Service Term, after which Iserv may modify the prices or fees at any time for Services in their Renewal Service Term (defined herein) upon thirty (30) days’ notice to Customer. Any continued use of the Services thirty (30) days after the notice date shall be deemed acceptance of the new pricing.
8. Invoicing and Payments. Iserv will invoice Customer monthly for subscription-based or recurring Services, metered and usage based Services, and for all installation, implementation, hardware, software, project, and other non-recurring Services at the rates shown in the Service Order, and Iserv may require security deposits, advance payments, and/or progress payments. All hardware and associated licensing, setup fees, installation, and other nonrecurring items may be invoiced upon receipt of Service Order. All payments are due in US Dollars within thirty (30) days of the invoice date unless stated otherwise (“Due Date”). Customer’s obligation to begin paying for the Services (“Billing Start Date”) will start on the date upon which the Service is installed and available to Customer unless the Service Order or this Agreement provides otherwise. Modifications to monthly Services (upgrades/downgrades, move orders, and other changes) will be pro-rated for the month in which they take place.
9. Payment Default. If Customer has not paid its invoice by the Due Date or if Customer files for insolvency protection of any sort (a “Payment Default”), Iserv may take any combination of the following actions: (i) suspend Services; (ii) require a cash deposit or standby letter of credit; (iii) stop taking new orders for additional Services; and/ or (iv) terminate Services or the Agreement for breach in which event Customer will, in addition to amounts owed Iserv, be responsible for all applicable early termination fees, as defined in the applicable Service Order (“Early Termination Fees”). For all payments not made by the Due Date, Iserv may charge Customer interest on overdue amounts at the lesser of (i) an interest rate of one and a half per cent (1.5%) per month or (ii) the maximum interest charges permitted under applicable law. Customer will be responsible to Iserv for any expenses (including collection costs, reasonable attorneys’ fees and court costs) that Iserv incurs to collect overdue charges. Customer shall pay an additional charge for each returned check or other rejected payment. If Iserv elects to reinstate any Service that has been suspended in accordance with this section, Iserv may charge Customer a reinstatement fee.
10. Right to dispute. Customer may dispute any or all of an invoice by providing notice to Iserv within thirty (30) days from the invoice date on which the disputed charge appears; provided, however, that any disputed amounts remain due and payable according to the payment terms described in this Agreement. If Customer fails to pay the disputed charges in accordance with the payment terms of this Agreement, Iserv may, without further notice, exercise any of its rights for a Payment Default as described above. If Iserv does not receive written notification of Customer dispute within such thirty (30) day period, Customer agrees that Iserv is entitled to all of the charges set forth in the invoice and that Customer has waived any right to dispute such charges for any reason. Customer must provide all supporting documentation that Iserv may reasonably request for all disputes. Acceptance of late or partial payments (even if marked “Paid in Full” or with other such verbiage) shall not waive any of Iserv’s rights to collect the full amount of Customer’s charges for the Service.
11. Taxes and Surcharges. Customer acknowledges that any taxes, fees and surcharges applicable to the Services including but not limited to: state, federal, and local taxes, regulatory recovery, E911 Service, State/County 911, Universal Service Fund, carrier surcharge, directory listings, and directory assistance (“Taxes and Surcharges”) are Customer’s responsibility and are subject to change. If Customer believes it is exempt from the application and collection of certain Taxes and Surcharges, it must provide Iserv with a valid exemption certificate(s) demonstrating that it is not subject to such Taxes and Surcharges on a prospective basis. Customer will indemnify, defend and hold Iserv harmless from any Taxes or Surcharges arising directly or indirectly from Customer’s purchase of the Services.
12. Term and Termination. The initial minimum term for each Service is set forth in the Service Order. The start date for the Initial Service Term of each Service is the Billing Start Date, unless otherwise defined in the applicable Service Order. After the end of a Service’s Initial Service Term or Renewal Service Term (defined below), unless Customer provides written or electronic notification of its intention not to renew the Agreement at least sixty (60) days prior to the end of the Initial Service Term or the then-current Renewal Service Term, the Services will automatically renew for subsequent twelve (12) month terms (each such renewal, a (“Renewal Service Term”). All such Renewal Service Terms, together with the Initial Service Term, will be referred to as the “Term”. Iserv can terminate this Agreement or any Service for any reason at the end of a Service’s Initial Service Term or Renewal Service Term (defined below) by providing at least sixty (60) days’ notice to Customer. Iserv can terminate this Agreement or any Service Order/s for cause at any time, including during the Initial Service Term, if (a) Customer is in Payment Default or (b) Iserv determines that Customer has violated a material provision of this Agreement including any Service Orders or Policies (each a termination “For Breach”). In the event that Iserv terminates For Breach, Customer shall pay, in addition to any amounts owed Iserv through the month of termination, an Early Termination Fee of ninety percent (90%) of the total remaining monthly fees under the applicable Service Order. If Customer elects to terminate any Service prior to the expiration of the Term, other than in accordance with an applicable service level terms or in the event of an uncured material breach of the Agreement or a Service Order by Iserv, Customer will pay an Early Termination Fee of ninety percent (90%) of the total remaining monthly fees under the applicable Service Order. Customer and Iserv agree that an Early Termination Fee is not a penalty but serves as an accurate approximation of the damages to Iserv that result from the termination before the end of the Term.
13. Warranty. ISERV WARRANTS THAT THE SERVICES WILL BE PERFORMED IN A PROFESSIONAL MANNER, PURSUANT TO GENERALLY ACCEPTED INDUSTRY STANDARDS AND PRACTICES FOR SIMILAR SERVICES; PROVIDED, HOWEVER, THAT CUSTOMER UNDERSTANDS AND AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY FOR ANY ISSUE OR CLAIM RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES AND PRODUCTS SHALL BE FOR ISERV TO PROVIDE CUSTOMER WITH THE CREDITS AND REMEDIES PURSUANT TO THE TERMS OF THE APPLICABLE SERVICE LEVEL TERMS, IF ANY. EXCEPT FOR THE FOREGOING, ISERV PROVIDES ALL SERVICES, SOFTWARE AND PRODUCTS ON AN “AS IS” BASIS, AND CUSTOMER’s USE OF THE SERVICES AND PRODUCTS IS AT ITS OWN RISK. ISERV DOES NOT MAKE AND EXPLICITLY DISCLAIMS, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AS WELL AS ANY WARRANTIES THAT MAY ARISE FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ISERV DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE WILL BE ERROR-FREE, UNINTERRUPTED OR SECURE FROM THIRD-PARTY ATTACKS. THE PRECEDING DISCLAIMERS INCLUDE AN EXPRESS ACKNOWLEDGMENT BY CUSTOMER THAT, AMONG OTHER THINGS, ISERV DOES NOT MAKE ANY PROMISE TO CUSTOMER THAT: (1) THE SERVICES OR PRODUCTS ARE FIT TO BE SOLD; (2) THE SERVICES OR PRODUCTS ARE FREE FROM DEFECTS; (3) THE SERVICES OR PRODUCTS WILL PERFORM IN ANY SPECIFIC MANNER, AT A PARTICULAR SPEED, OR TO ANY PARTICULAR STANDARD; MANAGED OR OTHER SECURITY SERVICES WILL PROVIDE ANY PARTICULAR LEVEL OF PROTECTION FOR CUSTOMER’S COMPUTERS, NETWORKS OR SYSTEMS; (5) HOSTED SERVICES WILL MEET ANY PARTICULAR LEVEL OF SECURITY, RELIABILITY OR COMPLIANCE, OR (6) THE SERVICES OR PRODUCTS CAN BE USED FOR A SPECIFIC PURPOSE. THE APPLICABLE SERVICE ORDER MAY CONTAIN AN ADDITIONAL PRODUCT WARRANTY RELATED TO PURCHASED HARDWARE.
14. Limitation of Liability. ISERV SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS OR LIABILITY OF ANY NATURE INCURRED BY CUSTOMER OR ITS END USERS AND/OR ANY THIRD PARTY ARISING FROM, OR IN CONNECTION WITH, THE USE OR PERFORMANCE OF THE SERVICE(S). IT IS EXPRESSLY UNDERSTOOD THAT ISERV SHALL IN NO EVENT BE RESPONSIBLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THE USE OR PERFORMANCE OF THE SERVICES. IN NO EVENT WILL ISERV OR ITS SUPPLIERS’ CUMULATIVE LIABILITY EXCEED: (A) FOR CLAIMS RELATING TO THE FAILURE OF A SERVICE THAT PROVIDES REMEDIES UNDER SERVICE LEVEL TERMS, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, ANY AMOUNTS EXCEEDING THREE (3) MONTHS OF THE MONTHLY RECURRING CHARGES FOR THAT SERVICE (WHICH AMOUNT SHALL BE THE EXCLUSIVE REMEDY); OR, (B) FOR CLAIMS NOT RELATING TO THE FAILURE OF A SERVICE THAT PROVIDES REMEDIES UNDER SERVICE LEVEL TERMS, THE FEES PAID BY CUSTOMER TO ISERV FOR THE SERVICES OVER THE PREVIOUS SIX (6) MONTHS; OR, (C) FOR SOFTWARE AND PRODUCTS, AN AGGREGATE OF $100.00; OR, (D) FOR HOSTED SERVICESTHE RIGHT TO CANCEL THE SERVICE WITHOUT INCURRING AN EARLY TERMINATION FEE. IN ADDITION AND NOT IN LIMITATION OF ANY OTHER DISCLAIMER OR LIMITATION OF LIABILITY CONTAINED IN THE AGREEMENT, ISERV AND ITS SUPPLIERS WILL NOT BE RESPONSIBLE FOR ANY DAMAGES, LOSSES, EXPENSES OR COSTS THAT CUSTOMER SUFFERS AS A RESULT OF THE SERVICES, SOFTWARE OR PRODUCTS, INCLUDING BUT NOT LIMITED TO: (I) ANY INTERRUPTION OR FAILURE OF THE SERVICES, SOFTWARE OR PRODUCTS; (II) THE DOWNLOADING OR USE OF ANY INFORMATION, DATA, SOFTWARE OR MATERIALS OBTAINED VIA THE SERVICES OR FROM THE INTERNET; (III) ANY FAILURE TO COMPLETE A TRANSACTION ON THE INTERNET OR WHILE USING THE SERVICES; (IV) ANY LOSS OF EMAIL, BACKUP OR DATA (WHETHER BEING TRANSMITTED ACROSS ISERV’S NETWORK, CUSTOMER’S NETWORK OR BEING STORED, BACKED-UP, OR PROCESSED VIA ONE OF THE HOSTED PRODUCTS OR ISERV’S COLOCATION, MANAGED OR API SERVICES; (V) ANY INTERRUPTION OR FAILURE OF A THIRD PARTY’S SERVICES, SOFTWARE, EQUIPMENT OR NETWORK; (VI) ANY UNAUTHORIZED USE OF, OR MODIFICATION TO, THE PRODUCTS, SOFTWARE OR SERVICES OR THE COMBINATION OF THE PRODUCTS, SOFTWARE AND/OR SERVICES WITH OTHER SERVICES OR PRODUCTS; (VII) VIRUSES, WORMS, TROJAN HORSES OR OTHER NOXIOUS DATA OR SOFTWARE; (VIII) FAILURE OF DATA STORAGE, SERVER ACCESS OR EMAIL INCLUDING, BUT NOT LIMITED TO, SENDING OR RECEIVING EMAILS, BLACKLISTING, SPOOFING AND OTHER FAILURES OF SERVICE DUE TO SIMILAR ACTIONS OF CUSTOMER OR OTHER ISERV CUSTOMERS; OR (IX) ANY UNAUTHORIZED ACCESS, ALTERATION, THEFT OR DESTRUCTION TO CUSTOMER’S DATA, PERSONAL INFORMATION, COMPUTERS, NETWORK, PHONE SYSTEM, EMAIL SYSTEMS, DATA BACKUP SYSTEMS, SERVERS OR VIRTUAL SERVERS, PROGRAMS OR WEBSITES. CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT HOSTED SERVICES ARE PROVIDED BY ONE OR MORE SUPPLIERS, AND THAT ISERV IS SIMPLY RESELLING THE SERVICE. THEREFORE, CUSTOMER ACKNOWLEDGES AND AGREES THAT ISERV’S SOLE LIABILITY WITH RESPECT TO SUCH SERVICES SHALL BE AS SET FORTH ABOVE. CUSTOMER MUST BRING ANY CLAIM RELATING TO THE AGREEMENT WITHIN ONE (1) YEAR OF THE CLAIM ARISING AND WAIVES ANY RIGHT TO RAISE A CLAIM THAT AROSE MORE THAN ONE (1) YEAR PRIOR.
15. Indemnification. Customer hereby agrees to defend, indemnify and hold Iserv, its affiliates, directors, officers, employees and contractors harmless from any and all third party claims, liabilities, losses, damages, expenses, or causes of action, including, without limitation, reasonable legal fees and expenses (collectively, “Losses”) arising from or in connection with any use, attempt to use or resale of the Services or otherwise arising in connection with any Services or this Agreement. Each Service Order may contain additional Customer indemnities to which the Customer agrees to be bound.
16. Force Majeure. Iserv shall not be responsible nor liable for any damages, whether direct, indirect, consequential, incidental, foreseeable or unforeseeable, arising out of, in connection with or relating to any matter occasioned by or due to fire, flood, 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 Iserv’s reasonable control.
17. Independent Contractor. The parties agree that they are independent contractors and that this Agreement and relations between the parties hereby established do not constitute a joint venture, agency or contract of employment between them, or any other similar relationship. Neither party has the right or authority to create an obligation or responsibility on behalf of the other.
18. Assignment. Customer may not assign or transfer this Agreement, in whole or part, without Iserv’s consent, which consent shall be at Iserv’s sole discretion. Iserv may assign any of its rights or to delegate any of its duties hereunder to any affiliate or to any third party as part of a sale of all or substantially all of its assets or stock or as part of a merger. Iserv may subcontract the performance of certain services to third parties.
19. Confidentiality. This Agreement and its terms, together with any Service Orders, is designated as proprietary and confidential information as is any information regarding either party’s customer lists, prospective customers, rates, network configuration, traffic volume, financial information, computer software, processes, methods, knowledge, research, development or other information, whether oral or written, of a confidential and proprietary manner (“Confidential Information”). The parties agree that they will not disclose the Confidential Information of the disclosing party, either directly or indirectly, by any means, to any third person(s) without the express written permission of the disclosing party. In the event disclosure is mandated by court order, subpoena, a governmental authority, or under law, in such case the receiving party shall, as may be permitted by law, give prompt written notice prior to any such disclosure to the disclosing party and will cooperate fully in obtaining any protective order or other form of confidentiality protection. The parties’ obligations under this section shall survive the expiration or termination of the Agreement for two (2) years thereafter.
20. Governing Law and Consent to Jurisdiction. This Agreement shall be construed in accordance with and governed by the internal laws of the State of Massachusetts without giving effect to its conflicts of law provisions. Customer consents to the exclusive jurisdiction of Suffolk County, Massachusetts.
21. Arbitration. Any disputes arising from the interpretation of or performance of this Agreement or any Attachments shall be submitted for binding, expedited arbitration in Boston, Massachusetts, before a single arbitrator agreed upon by the parties. Such arbitration shall be in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitrator’s ruling at the Hearing shall be final and binding on all parties and the prevailing party shall be entitled to a recovery of all costs (including, but not limited to, reasonable attorneys’ fees).
22. Notices. Notices to Customer may be sent to the email address or physical address listed on the Service Order or to any contact information subsequently provided to Iserv. Customer consents to receiving all notices hereunder through electronic means. All notices to Iserv must be in writing.
23. Entire Agreement and Amendments. This Agreement, including the Service Orders and Policies entered into or incorporated herein by reference, constitute the entire agreement between Iserv and Customer with respect to the subject matter of this Agreement, and the Agreement supersedes any prior agreements, promises, offers, communications, representations, statements, negotiations, understandings, or proposals, oral or written between Customer and Iserv. Customer acknowledges and agrees that Customer has not relied upon any statement, promise or representation by Iserv, any related entity, or any of their respective employees, contractors or agents, including those relating to the performance, pricing, specifications, or other aspects of any service or product offered by Iserv and not expressly set forth in this Agreement. Except as set forth in the Agreement, the Agreement can only be modified, amended, or waived through a writing signed by an authorized employee of each party or by notice from Iserv as described in this Agreement. Iserv further reserves the right to alter, change or eliminate Services or to change or eliminate areas where Iserv provides Services upon thirty (30) days prior written notice to Customer.
24. Survival. Any accrued rights to payment, any remedies, and all sections of this Agreement that by their nature would survive including without limitation, indemnification, remedies, warranty disclaimers, and limits of liability shall survive any expiration or termination of this Agreement.
25. Severability. If any provision of this Agreement is held to be invalid or unenforceable under any circumstances, it shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties and its application in any other circumstances and the remaining provisions of this Agreement shall not be affected.
26. Waiver. Failure by either party to insist upon strict and complete performance of any or all terms or conditions contained in the Agreement shall not constitute nor be construed as a waiver of that party’s right to enforce such provision or any other provision.
27. Counterparts. If Iserv elects to sign any Service Order, then it may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one Agreement. Facsimile signatures and electronic signatures (including electronically transmitted signed documents) shall be accepted and treated the same as an original.