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.