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Master Service Agreement
This Master Service Agreement (the “Agreement”), is between The Iserv Company, LLC (“Iserv”) and Customer, and sets forth 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 from time to time and accepted by Iserv as provided herein (each, a “Service Order”); and (ii) Acceptable Use Policy and other policies as posted on Iserv’s web site at http://www.iserv.net/legal (the “Policies”).
1. Service Orders. Each Service Order shall include, without limitation, applicable service descriptions, service level terms, 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 any and all third parties to Iserv and its affiliates. In addition to the Services, Iserv or its suppliers may deliver to Customer certain hardware in connection with the Services (collectively, “Products”). Iserv or its suppliers may also supply software (external to or embedded in the Products) and related documentation (“Software”) in connection with the Services. Iserv shall use commercially reasonable efforts to provide the Services, associated Products and Software described in each applicable Service Order. Iserv may accept or reject any Service Order and may require Customer to post an appropriate advance deposit for new and existing Services to be held against amounts Customer may owe under the Service Order/s. 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, Products and/or Software 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. Iserv and its suppliers 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.
2. Use of Services, Software and Products. Customer shall use the Services, Products and Software in accordance with all applicable laws, rules and regulations and in accordance with the 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 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 the Software or the Products, create or recreate the source code for the Products or any Software, or re-engineer, reverse engineer, decompile, disassemble or attempt in any way to disable, deactivate or render ineffective the password protection in the Products or any Software. Some 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 software. Customer agrees to comply with any such additional terms and conditions required for the Service. Iserv is not responsible for the configuration of Customer’s equipment that may be necessary to make such equipment compatible with the Services or Products. If Customer has opted to provide its own equipment, Customer will be solely responsible for procuring any firmware licenses and/or updates, and Iserv shall have no obligation to provide such firmware licenses or upgrades. If, at any time after execution of a Service Order, Customer causes a delay in Service installation or port dates, Customer shall be responsible for any additional cost and fees incurred by Iserv or Customer as a result of this delay.
3. Domain Name Hosting, Domain Name Transfer-In, and Domain Registration (when applicable):
a. Domain Name Transfer. In the event Customer wishes to transfer its domain name to Iserv, Customer agrees that it is solely responsible for the registration and renewal of its domain name and that Iserv has no responsibility related thereto. In the event of a domain name transfer, Customer certifies that, to its knowledge, the use of this name does not violate current trade or service mark registrations or other statutes. Iserv maintains the authority to relinquish Customer’s domain name if it is found and contested between another party maintaining a trademarked domain name or in violation of other statutes. Customer will be listed as the registrant (owner) of the domain name with the Name Service Provider and holds ownership of the domain name for exclusive use by Customer.
b. Domain Name Registration and Renewal. In the event Customer elects to purchase Iserv’s Domain Name Registration and Renewal Services, Iserv charges a yearly fee of $36 for domain name hosting. This fee is paid in advance and does NOT include a connection to Iserv Internet services, web space on ISERV’s server, or the registration of Customer’s domain name. These fees will apply to the maintenance, administration and payment of ongoing service fees related to the domain name service and will be billed to Customer. Iserv charges a yearly fee of $66 for .com, .net, .org, .info, and .biz domain names. Iserv charges a yearly fee of $76 for a .cc or a .tv domain name. This fee includes initial registration hosting the domain on Iserv domain servers as requested by Customer and renewal of the domain name each year, including the processing of all forms. This fee is paid in advance and does NOT include a connection to Iserv Internet services or web space on Iserv’s server. These fees will apply to the maintenance, administration and payment of ongoing service fees related to the domain name service and will be billed to Customer. Iserv reserves the right to modify all Application Service Fees with thirty (30) days prior notice.
4. Virtual Mail Server (when applicable): Virtual Mail Server services include hosting of all email for Customer’s domain name on a mail server maintained and hosted by Iserv. Access to email can be done through POP3, IMAP, and/or WebMail. An Administrator account will be set up for Customer domain on an Iserv mail server so that Customer can remotely administer all Customer domain email accounts. Customer will be required to configure all initial and ongoing email accounts and aliases for Customer domain.
5. Secure Socket Layer (when applicable): SSL services offered by Iserv will provide an Iserv hosted Secure Server Certificate which will reside on the encryption server.
6. ETRN Mail Services (when applicable): ETRN Mail Services include SMTP (Simple Mail Transfer Protocol) ETRN (Extended Turn) support for email attached to a domain name. Iserv will store and hold email in the event of intermittent network interruptions and forward the email when the connection is re-established.
7. E911/911 Services (when applicable). When Customer orders E911/911 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 Services, before Iserv will provide the E911/911 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 Services associated with applicable Iserv Services.
8. Customer Premises Equipment. In order 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.
9. Fees and Prices. Customer shall pay for all Services and Products that Iserv furnishes to Customer. The relevant Service Order shall specify the one-time, recurring and optional prices and associated fees that Customer shall pay for each Service during the Service Term; provided however, that such fees do not include taxes or other surcharges and 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. In addition, Iserv reserves the right to make material changes to this Agreement effective thirty (30) days following notice to Customer.
10. Invoicing. Iserv shall bill Customer in arrears for non-recurring, usage and pro-rata usage-based charges (if any) and shall bill Customer in advance for the monthly recurring fees for the Services. Iserv will charge Customer for all one-time installation and equipment fees, miscellaneous fees and for initial monthly recurring charges at the rates shown in the Service Order . All payments are due in US Dollars within three (3) days of receipt of the invoice, unless the Service Order provides otherwise (“Due Date”). Customer’s obligation to begin paying for the Services (“Billing Start Date”) will generally start on the date upon which the Service is installed and available to Customer (unless the Service Order provides otherwise), however, all applicable installation fees, equipment fees and one month’s worth of monthly recurring charges will be due prior to the Billing Start Date. Please see the applicable Service description in the Service Order for a description of the Billing Start Date for that Service. Monthly service charges, upgrades/downgrades, move orders and other charges related to service changes are pro-rated for the month in which they take place. Any traditional telecommunications services available pursuant to the Agreement are provided by JAS Networks, Inc., (“JAS”), an affiliate of Iserv. As an authorized billing agent of JAS, Iserv will bill for such telecommunications on the same invoice with which Iserv services are billed.
11. 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 the unpaid Services; (ii) require a cash deposit or standby letter of credit; (iii) stop taking new orders for additional Services; and/ or (iv) terminate the unpaid 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 Orders (“Early Termination Fees”). For all payments (including unpaid Regulatory Surcharges) not made by the Due Date, Iserv may charge Customer interest on overdue amounts at the greater 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 equal to the amount of the month recurring fee billed to Customer in the prior month.
12. 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.
13. 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. Taxes and Surcharges will be included by Iserv in the invoice in addition to the quoted monthly charges. 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.
14. 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 generally 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 thirty (30) 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 thirty (30) days’ notice. 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, Subscriber 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(s). 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(s). 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.
15. 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.
16. Limitation on 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.
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.
18. Copyright, Trademark & Unauthorized Use. All Services, Software, information, documents and materials on Iserv’s website(s) or provided to Customer in connection with the Services, Software or Products 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. Customer shall not remove, erase, tamper with or fail to preserve any copyright, trademark, or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Products or any Software.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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).
27. 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, Products or Software or to change or eliminate areas where Iserv provides Services upon thirty (30) days prior written notice to Customer.
28. 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.
29. 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.
30. 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.
31. 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.
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