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, statements or work 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 and conditions 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 (the “Third-Party

Terms”). Customer agrees to comply with any such additional terms and conditions required for

the Service, and understands and agrees that changes in Third-Party Terms may result in

mandatory changes in Services and/or changes in the Fees and Prices of third-party Services.

Regarding contractual duration, termination, and renewal terms for third-party Services, the

Third-Party Terms agreed to by Customer shall surpass and supersede those in the Agreement.

Should the contractual duration for third-party Services extend beyond the contractual duration

of the Agreement, the Agreement shall be automatically extended to meet the duration of the

underlying third-party Services. For all Microsoft Services, Customer must accept and comply

with all applicable Microsoft Customer Agreement (“MCA”), Microsoft Online Subscription

Agreements, Microsoft Terms and Conditions, and any other additional terms and conditions

required by Microsoft to provision and use Microsoft Services, including pricing, term

commitments, and service level agreements. 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.

4. AUP and Privacy Policy. Customer will comply with (and will ensure that all users of the

Service comply with) Iserv’s acceptable use and privacy Policies. Iserv may suspend or cancel

the Services if Customer (or anyone that uses Customer’s Services) violates either Policy. In

most cases, Iserv will endeavor to notify Customer of such violations before taking such action,

but Iserv may act without such notice and without liability to prevent harm or damage to Iserv’s,

Customer’s or a third-party’s property, networks, or systems. Customer further acknowledges

that Iserv may amend the Policies from time to time without notice, and Customer is responsible

for compliance with the current versions of the Policies.

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. Customer is responsible for all additional costs and expenses associated with

shipping the equipment to its designated locations. 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. Notwithstanding

anything in the foregoing, an annual price increase of 3.5% will be automatically applied to

cover increasing costs related to inflation and overall technology and systems cost increases.

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 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.

 

 

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. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY

(WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL ISERV 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) REGARDLESS

OF WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OR COUND HAVE

FORSEEN SUCH DAMAGES. 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)

CYBERTERRORISM, VIRUSES, WORMS, TROJAN HORSES OR THE COLLECTION OF

INFORMATION BY MEANS OF ELECTRONIC “SPIDERS”, “SPYBOTS”, “SPYWARE”. 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 AND THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE

RISKS UNDER THIS MSA BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY

GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF ISERV

WHERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN SETFORTH IN THIS

HEREIN. ISERV HAS RELIED ON THESE LIMITATIONS IN DETERMINING WEHTHER TO

PROVIDE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE SERVICES

PROVIDED FOR IN THIS MSA. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN

WILL APPLY IN AGGREGATE TO CUSTOMER AND ITS AFFILIAITES AND SHALL NOT BE

CUMULATIVE. 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.

 

“Cyber Terrorism” means any act or series of acts of any person or group(s), whether acting

alone or on behalf of or in connection with any organizations(s), committed for political,

religious, or ideological purposes including but not limited to the intention to influence any

government and /or to put the public in fear for such purposes by using activities perpetrated

electronically that are directed towards the destruction, disruption or subversion of

communications and information systems, infrastructure, computers, telecommunications or

electronic networks and/or its content thereof or sabotage and or threat therefrom.

 

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, unusually

severe weather, acts of God, war and threat of imminent war, labor disputes or shortages, utility

curtailments, power failures, unavailability or performance degradation of electrical resources or

the internet, explosions, civil disturbances, governmental actions, insurrection, terrorism,

elevated risk of terrorism, riot or disorder, 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, contemporaneous

communications, representations, statements, negotiations, understandings, or proposals, oral

or written between Customer and Iserv. Any preceding Agreement that was previously executed

between the parties (each a “Prior Agreement”) and listed in an exhibit to this Agreement (if any)

is terminated. 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.

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