Terms and Conditions
M3COM of Virginia, Inc.
This Master Services Agreement (the “MSA” “Terms and Conditions” or “Agreement”), together with the applicable Service Level Agreement (if any) between M3COM of Virginia, Inc., a Virginia corporation (“M3COM”), and the Customer, sets forth the terms and conditions pursuant to which the Customer agrees to purchase and M3COM agrees to provide the Service(s) specified in the applicable Order Form. Usage of the Services or the M3COM System, payment for Services, or acceptance of an Order Form, after being notified of a change to these Terms and Conditions, constitutes acceptance of the then current Terms and Conditions as they exist at https://www.m3comva.com/terms-and-conditions, unless written objection is made to the modification of the Terms and Conditions within ten (10) days of notification to Customer notwithstanding the lack of a signature. If an Order Form predates these Terms and Conditions, continued use of the Services without objection by Customer within ten (10) days of notification of this MSA, shall constitute acceptance.
Section 1. Definitions
As used in this Agreement, the capitalized terms listed in this Section 1 and defined elsewhere in the body of this Agreement (and derivatives thereof) shall have the meanings respectively ascribed to them.
- “Affiliate” means, with respect to any Person, any other Person, who directly or indirectly controls, is controlled by, or is under common control with, that Person.
- “Agreement” means, collectively, this Master Services Agreement, and the applicable Service Level Agreement (if any), and the Network Service Order Form for that Service.
- “Business Day” means any day, Monday through Friday, excluding public, bank, or statutory holidays in the location(s) where the service is being provided or function is being performed.
- “Customer” means the Person who executes the applicable Master Services Agreement and the Order Form.
- “Customer Site” means the location(s) owned or occupied by the Customer or its end users to which the Service will be delivered by M3COM.
- “Event of Insolvency” shall mean in relation to a Party: (a) when such Party makes a general assignment for the benefit of creditors, or files a voluntary petition in bankruptcy, or any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution, or similar relief, or (b) when an involuntary petition in bankruptcy or other insolvency protection is filed against either Party and not dismissed within ninety (90) days thereafter.
- “Force Majeure Event” means any cause that is beyond the reasonable control of the affected Party, including, but not limited to, acts of God or nature; insurrection or civil disorder; war; terrorist acts, fires, flood, or other catastrophic events or natural disasters; power outages or interruptions of other utility services; magnetic interference; solar radiation and laws or restrictions imposed by any governmental or judicial authority.
- “M3COM Facility” means any facility or real property under the operation and control of M3COM in which M3COM operates the M3COM System.
- “M3COM System” means any network, facility, service, or equipment including, without limitation, all aspects of that certain communications network that M3COM, or its Affiliates, underlying carriers, partners, providers, and/or suppliers, has constructed, constructs, or provides, including, without limitation, in order to provide any Service.
- “Interest Rate” means the lower of (i) the highest rate permitted by law, or (ii) one and one-half percent (1.5%) per month, compounded daily.
- “Maintenance Window” means 10:00 p.m. to 7:00 a.m. (local time) and certain scheduled weekends, as required.
- “Order Form” means a written request by Customer for a Service on an M3COM approved service order form.
- “Notice Address” means the address specified for notice by the Parties in accordance with Section 15(a).
- “Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, other entity, or government or any agency or political subdivision thereof.
- “Service” means a service provided by M3COM pursuant to an accepted Order Form and this Master Service Agreement. No other terms or conditions shall be applicable to the provision of the Services unless expressly agreed to in accordance with the terms of this MSA.
- “Service Level Agreement (SLA)” means the schedule attached to the applicable Order Form, or this Master Services Agreement, that contains additional specifications, terms and conditions for the provision of the Service ordered by the Customer.
- “Tail Circuit” means the physical connection and network extending from the ending demarcations of a Service set forth in the Network Service Order Form to be provided by M3COM.
- “Taxes” means any sales, use, or excise tax, value added tax, goods and services tax, gross receipts tax, or similar taxes, fees, surcharges, customs, tariffs, and other duties, and any tax, permit, license, or other charges or impositions associated with doing business in the host country or to provide the Service(s) imposed by any governmental, quasi-governmental, federal, regional, or local political authority and/or subdivisions, including, without limitation, tribal authorities, including charges required or permitted by governmental or quasi-governmental authorities or applicable law in support of any statutory or regulatory programs, including, without limitation, the Universal Service Fund charge contemplated by the Telecommunications Act of 1996, as amended (US), and similar obligations, or similar legislation under the laws of any national, supranational, state, provincial, or other political subdivision or quasi-governmental authority, but shall not include any taxes by reference to M3COM’s net income. Taxes also means any such taxes and charges in effect on the date of this Agreement or that may be imposed after execution of this Agreement and any Network Service Order Form and applies regardless of any agreements with the host country concerned over the tax or charge exempt status of the Customer.
Section 2. Provision of the Service
M3COM will provide Customer with the use of the Service substantially conforming to the specifications set forth in the Order Form and the SLA (as applicable). From time to time, Customer shall identify or request Service from M3COM. M3COM may, in response to such identification or request, provide to Customer an Order Form setting forth such specifications as Customer has included in its identification or request. Any such initial Order Form shall be binding on M3COM only when such Order Form is accepted by M3COM by countersigning the Order Form. However, M3COM reserves the right to expressly waive the requirement that it countersign the Order Form. Prior to fulfilling the condition precedent of acceptance by M3COM, any Order Form exchanged between M3COM and Customer shall merely be a price estimate. As a material part of the consideration for entering into this Master Services Agreement, each party agrees not to contest or assert any defense relating to the authority of any representative or employee of such party to enter into this Master Services Agreement or any Order Form.
Section 3. Payment; Taxes
- M3COM’s obligation to provide Service(s) to the Customer pursuant to the Master Services Agreement is subject to approval by M3COM of the applicable Order Form, as set forth in Section 2 above, and the Customer’s Credit Status. “Credit Status” shall refer to the credit rating and payment history with M3COM which shall be subject to review by M3COM at any time during the Term of the Master Service Agreement, as determined in its sole discretion. In consideration of the provision of the Service to the Customer, the Customer agrees to pay M3COM the monthly fees or other charges and nonrecurring fees or other charges set forth in the Order Form and/or the Agreement for the Service (the “Fees”). Fees shall include (a) monthly recurring charges (“MRCs”); (b) non-recurring charges (“NRCs”); (c) any and all Taxes included on the invoice; and, (d) any and all costs or expenses required to deliver the Service in accordance with the required specifications.
- The NRCs shall be invoiced upon acceptance of the Order Form. Invoices for the MRCs shall commence on the first day of the month following the Service Commencement Date (defined below) unless otherwise set forth in the Order Form. Upon the Service Commencement Date, Customer shall pay the first months MRCs (which shall be assessed on a pro-rata basis if the first month is a partial month) plus the MRCs for the next two (2) full months of Services as specified in the Order Form and may include any applicable Taxes. Thereafter, the Fees will be invoiced monthly in advance. Charges for usage-based services will be billed monthly in arrears. Any additional NRCs or other costs and expenses required to deliver the Service in accordance with the required specifications shall be invoiced to Customer as soon as practicable after or during the month in which they are incurred.
- In no event shall M3COM be responsible for any fraudulent or unauthorized use of the M3COM System or any amounts the Customer is unable to collect from its customers or end users. Customer shall be fully responsible for the Fees regardless of payment of the same from Customer’s customers or end users.
- Customer shall pay the Fees within fifteen (15) days from the date of invoice. All Fees shall be paid to M3COM in U.S. dollars, by wire transfer of immediately available funds, check, or credit card, as designated by M3COM on its invoices or as otherwise directed by M3COM. Such payments shall reference the invoice number, as provided in the invoice rendered. All payments made by the Customer are non-refundable.
- If the Customer fails to pay any amount of Fees when due, then, in addition to such sum and without prejudice to any other rights and remedies that M3COM may have, the Customer shall pay interest on such unpaid amount at the Interest Rate until such sum is paid in full and interest shall accrue both before and after judgment.
- The Customer may, if acting in good faith, dispute any portion of an invoice, provided that the Customer (i) pays the full undisputed portion of the invoice by its original due date, (ii) provides M3COM with a written statement and supporting documentation specifying, in reasonable detail, the dispute within ten (10) days of the date of the relevant invoice, and (iii) negotiates in good faith with M3COM to resolve the dispute. A failure of Customer to comply with the requirements of the dispute process set forth in this Section, shall be deemed a waiver of any dispute of Customer regarding the Fees charged in the subject invoice. If the dispute is not resolved within thirty (30) days from M3COM’s receipt of the Customer’s written statement, either Party may pursue its rights or remedies pursuant to Section 15(c) of this Agreement. If such dispute is later resolved in favor of M3COM, such unpaid amount shall bear interest, at the Interest Rate, from the date originally due until payment in full has been received by M3COM.
- The Customer’s obligation to pay any Fees or other amounts due under the Agreement shall not be subject to any rights of set-off, counterclaim, deduction, withholding, defense, or other right which the Customer may have against M3COM or any other Person, including, without limitation, for or on account of any Tax. Customer is solely responsible for, and shall promptly pay, any and all taxes, including, without limitation, the Taxes, when due, as any amounts set forth on the Order Form are exclusive of taxes of any kind (including, without limitation, the Taxes). In the event and to the extent Customer believes that it is exempt under applicable law from any Tax, Customer shall promptly provide M3COM with the appropriate tax exemption certificates, in a form acceptable to M3COM and to the relevant jurisdiction, demonstrating that it maintains tax-exempt status from collection of all or part of these types of Taxes. If Customer has not provided such certificates, and/or the relevant jurisdiction determines at any level that the Customer is not tax-exempt and/or is otherwise responsible for a Tax, M3COM shall be entitled to include such Tax on any invoice, and the Customer shall pay, any lawfully imposed Tax. M3COM shall have no obligation to obtain an exemption from or refund of any such Taxes, including interest or penalties, which may be assessed Customer. If Customer is required by law to make any deduction or withholding from any payment due hereunder to M3COM, then, notwithstanding anything to the contrary contained in this Agreement, the amount payable by Customer to M3COM shall be increased so that, after any such deduction or withholding for Taxes, the net amount received by M3COM will not be less than M3COM would have received had no such deduction or withholding been required.
- The Customer hereby agrees to pay all costs and expenses, including, without limitation, reasonable attorneys’ fees and court costs incurred by M3COM in collecting past due balances of any Fees or other amounts owed. Further, M3COM shall have the right to set off any amounts due hereunder which are not paid when due against any amounts owed to the Customer by M3COM or any of its Affiliates pursuant to this Agreement or any other agreement or arrangement.
- Purchase orders issued by the Customer shall not be deemed to amend, modify, or supplement this Agreement or any Order Form issued hereunder and shall not be legally binding on M3COM unless accepted in writing by M3COM.
- Customer hereby grants to M3COM a lien on any Customer equipment or other assets located in any M3COM Facility. In the event of termination for non-payment of Fees or other default, M3COM may hold such equipment until Customer satisfies all outstanding balances due to M3COM. In the event Customer fails to pay all amounts due within sixty (60) days of the effective date of termination, then M3COM may retain or sell, in its sole discretion, any equipment without liability to Customer and apply the proceeds against the amount owed.
Section 4. Delivery and Acceptance
- M3COM shall endeavor to commence delivery of Service as soon as commercially practicable after receipt and acceptance of a fully executed Order Form. When M3COM has determined that the Service with respect to an Order Form is deployed, M3COM shall provide the Customer written notice of the same (a “Completion Notice”). Each Completion Notice shall set forth the date upon which M3COM commenced delivery of the Service to the Customer with respect to each Order Form (the “Service Commencement Date”).
- The Customer shall have twenty-four (24) hours from the date of the applicable Completion Notice to test the Service and provide M3COM a written notice either accepting or rejecting the Service for failure to comply with the applicable specifications (the “Acceptance Period”). If the Customer reasonably and in good faith determines, during the Acceptance Period that the Service is not operating in conformity with the applicable specifications, the Customer shall immediately notify M3COM in writing prior to expiration of the Acceptance Period (specifying, in reasonable detail, the defect or failure in the Service). In testing the Service against the applicable specifications, Customer shall use industry standard testing methodology. Any use of the Service for purposes other than testing shall constitute acceptance of the Service from the date of the Service Commencement Date. If the Customer notifies M3COM of its acceptance of the Service, or fails to notify M3COM of its acceptance or rejection (with reasonable detail) of the Completion Notice within the Acceptance Period, the Customer shall be deemed to have accepted such Service as of the Service Commencement Date. For the avoidance of doubt, M3COM may commence billing for the Service even if the Service is not operational if the delay is solely due to the Customer’s failure to provide information, access, equipment, or other services necessary to operation of the Service.
- In the event of a good faith rejection of a Service by the Customer under Section 4(b), M3COM shall take such action as it deems reasonably necessary, and as expeditiously as commercially practicable, to correct or cure such defect or failure and repeat the completion notice process described in Sections 4(a) and 4(b).
- Unless otherwise specifically agreed to in writing by M3COM, the Customer shall be solely responsible for coordinating the provisioning of its respective facilities, connections, services, and equipment by the Service Commencement Date including, without limitation, any Tail Circuit, Customer hardware, software, and/or computer systems of Customer, and M3COM shall have no liability whatsoever with respect to the provisioning or functioning thereof.
- The provision by M3COM of the Service(s) in no way grants to the Customer any title or ownership in intellectual property which may be included or embodied therein, it being understood that such intellectual property shall at all times remain the exclusive property of M3COM and/or its underlying carriers, partners, providers, and/or suppliers.
Section 5. Term and Termination
- The Master Services Agreement shall take effect as of the date an Order Form is entered into by the Parties. The Order Form shall reference and incorporate the terms and conditions of this Master Services Agreement. This Master Services Agreement shall apply to all Order Forms effective between the Parties and shall remain effective until the expiration of the last effective Service Term (defined below), unless earlier terminated as provided in this Master Services Agreement (the “Term”).
- The service term, with respect to each Service, shall begin on the Service Commencement Date and shall extend for the period set forth in the applicable Order Form, and any and all renewals thereof (the “Service Term”). Unless the Customer has provided M3COM with written notice of its intention to terminate the Service at least ninety (90) days prior to the expiration of the Service Term, at the expiration of such Service Term, M3COM may, at its option, continue to provide the Customer the Service set forth in the applicable Order Form. If M3COM continues to provide the Service, then the Service Term will automatically renew and be extended on the same terms and conditions of the original Order Form (subject to any prior modifications thereto, and M3COM shall provide Customer with not less than thirty (30) days written notice of any price increase for the Service) and, unless specifically and expressly agreed, in a signed writing, that the renewal Service Term shall be for a period other than the period set forth in the Order form, the renewal Service Term shall be for the same period as the initial Service Term. Upon final termination of the Service, the Customer’s right to use such Service shall immediately cease. Any and all Service Terms shall be for thirty-six (36) months from the Service Commencement Date unless expressly stated otherwise in the applicable Order Form.
- Termination for Non-Compliance by M3COM. If, after the applicable Service Commencement Date, M3COM is in material breach of a Service and such breach is solely attributable to M3COM and has not been cured, or for which M3COM has not commenced reasonable efforts to affect a cure within thirty (30) days’ written notice by Customer, then, provided Customer has paid all applicable charges incurred to date, including, without limitation, the Fees, Customer may, without liability, terminate the applicable Service upon thirty (30) days prior written notice to M3COM. Notwithstanding the foregoing, Customer may not terminate the Service pursuant to this Section unless Customer has paid all amounts owed M3COM through the thirty (30) day notice period.
- Termination for Convenience. Without waiving the allowance of M3COM to cure any breach as set forth in this Section, Customer may at any time after acceptance of the Order Form by M3COM, provided Customer (a) has paid M3COM all applicable charges incurred to that date including, without limitation, the Fees, (b) pays any amounts due M3COM from the period of the notice of termination through the date of termination of the Service, and (c) Customer pays an early termination fee, which shall be assessed as liquidated damages and not as a penalty to be calculated as follows (“Early Termination Fee”):
- All unpaid NRCs specified in the Order Form; plus,
- All MRCs specified in the Order Form for the remaining balance of the Service Term.
- Upon expiration of the Term, with respect to the obligations of M3COM set forth in this Master Services Agreement, M3COM shall owe the Customer no further duties, obligations, or consideration. Upon expiration of a Service Term, with respect to the obligations of M3COM for that Service, M3COM shall owe the Customer no further duties, obligations or consideration. Expiration or termination of the Master Services Agreement shall not affect the rights, obligations, or liabilities of either Party that have arisen before the date of termination or expiration.
Section 6. Access; Interconnection
- The Customer shall grant M3COM or its designees access to, and use of, the Customer’s facilities at each Customer Site to the extent necessary, in M3COM’s commercially reasonable discretion, to provide the Service including, without limitation, the installation, connection, removal, and maintenance of the M3COM System relating to a Service. The Customer represents that it has obtained or will obtain, on a timely basis, all permissions and consents from third parties necessary to allow M3COM or its designees such access, including permission to cross real property to access the Customer’s and/or end users’ facilities. The Customer shall be responsible for providing and maintaining, at its own expense, the level of power, humidity, heating, and air conditioning necessary to maintain a proper environment for the M3COM System in each Customer Site. In the event that the Customer fails to meet its obligations regarding access and facilities maintenance and, as a result, M3COM is unable to install or continue the delivery of a Service, such event shall be treated as a termination of the applicable Service by the Customer pursuant to Section 5(c)(ii).
- M3COM shall, at Customer’s request, interconnect or cross connect the Customer’s communications system with the Service within M3COM’s System as designated in the applicable Order Form, all in M3COM’s commercially reasonable discretion.
Section 7. Maintenance, Repair and Upgrades
- M3COM shall use commercially reasonable efforts to perform all scheduled maintenance (which may include, without limitation, substituting, changing, converting, and reconfiguring equipment and facilities with respect to a Service) during a Maintenance Window or such other time as M3COM determines in its sole discretion is reasonably necessary. In the event M3COM determines that it is necessary to interrupt a Service for the performance of scheduled Maintenance, M3COM will use commercially reasonable efforts to notify the Customer at least three (3) days prior to such interruption. Customer shall secure M3COM’s access to the Customer Site in accordance with the provisions of Section 6. M3COM shall have full and complete control of the configuration, design, regrooming, rearrangement, or consolidation of circuits, equipment, and any related functions of the M3COM System. M3COM also reserves the right, from time to time, to upgrade the capacity of, and make enhancements to, the M3COM System. M3COM shall attempt to minimize interruption to, or impairment of, a Service arising from the implementation of any such enhancement or upgrade. In no event shall interruption for enhancements, upgrades, or maintenance constitute a failure of performance by M3COM of a Service in any manner.
- In the event M3COM conducts an inspection of the Customer Site due to interference or problems with the Service, and if M3COM determines, in its sole discretion, that such interference or problem arises from the Customer’s use of non-M3COM provided or approved equipment, configurations, or facilities, or for any other cause attributable to the Customer or its end user, the Customer shall pay for the cost of such visit and inspection at M3COM’s then-current rates. If the Customer requires a troubleshooting for any issue that is found not to be caused by M3COM, such as a customer configuration change, addition, deletion, etc., the Customer will be billed hourly at M3COM’s then-current rates with a one (1) hour minimum. Such payment shall be due to M3COM within ten (10) days of the date of the M3COM invoice for such costs.
Section 8. Use of Service
- The Customer represents, warrants, and covenants that during the Term and all applicable Service Terms (i) it shall use the Service(s) in compliance with, and subject to, all applicable government codes, tariffs, ordinances, laws, rules and regulations, and applicable acceptable use policies (as modified), and will require its customers and/or end users to do the same; (ii) after the acceptance of the applicable Order Form, it shall secure with respect to each Service, and maintain in full force and effect during the applicable Service Term, any and all necessary approvals, consents, rights of way, certifications, permits, franchises, licenses, or similar approvals from all governmental, private, and other authorities which are necessary or required to be obtained by the Customer; (iii) it is certified, to the extent required, by the proper regulatory agencies to provide interstate, international, and other services in those jurisdictions where such services are to be provided by the Customer, and to do business in all jurisdictions in which it conducts business and is in good standing in all such jurisdictions; and (iv) the content it or its customers and/or end users make available through the Service(s) will not: (x) include any indecent, offensive, illegal, or obscene material, or material prohibited by the jurisdictional authorities or providers of the service, (y) constitute a defamation or libel of M3COM or any third party, or (z) result in any liability of M3COM to any third party; and (v) shall strictly adhere to (and cause its end users to strictly adhere to) the AUP (defined below). In the event the Customer is in violation of any of the preceding with respect to a Service or an Unauthorized Use (defined below), or if the Customer’s use of a Service interferes with, or impairs, the M3COM System, M3COM may block the Customer’s signals or suspend the Service. M3COM will promptly notify the Customer when blockage or suspension occurs, and the Parties shall work diligently towards restoration of the affected Service. Such blockage or suspension shall not be included in any service level calculation set forth in the applicable SLA nor shall such suspension or blockage give rise to any claim for credit or an offset. M3COM shall maintain, with the appropriate governmental authorities, the necessary authorizations, if any, to deliver Service(s) to the Customer. In the event that M3COM cannot obtain or maintain such authorizations to provide the Service(s), M3COM may terminate such Service(s) by written notice to the Customer which shall constitute termination of the applicable Service(s) without liability of either Party.
- The Customer agrees (a) that it shall not rearrange, disconnect, remove, repair, or otherwise physically access or interfere with M3COM’s System, wherever located, unless authorized in advance, in writing, by M3COM; (b) that any equipment provided by M3COM, its partners, providers, and/or suppliers shall be used solely for the purpose for which it is provided by M3COM, its partners, providers, and/or suppliers; (c) to take such actions as are reasonably directed by M3COM to protect M3COM, its partners, providers, and/or suppliers’ interest in the M3COM System provided by them and shall keep the M3COM System free and clear from all liens, claims, and encumbrances; (d) that it bears the entire risk of loss, theft, destruction, or damage to the M3COM System placed at the Customer Sites (except for damage caused by M3COM), and shall promptly (within 3 days thereof) notify M3COM, in writing, of any such loss, theft, destruction, or damage; (e) when equipment is shipped to the Customer Site, that the Customer shall handle it with the same care of their own equipment, but not less than reasonable care, including the packaging to return such equipment; (f) that M3COM shall not be responsible for any changes that cause the equipment or Customer’s equipment to become obsolete or require modification or alteration; (g) to permit M3COM, its partners, providers, and/or suppliers to periodically inspect the M3COM System during the Service Term and remove the M3COM System from any Customer Site after termination or expiration of the Agreement or the Service provided hereunder in relation to which the equipment was provided.
- Customer will designate and, as necessary, update and remove, the Authorized Users for the Service(s), including the creation of usernames and passwords for such Authorized Users. Customer is solely responsible for maintaining the status of its Authorized Users and for all the activity of such Authorized Users and their use of the M3COM System. Customer and its Authorized Users will maintain the confidentiality of all usernames, passwords, access, and account information. Except to the extent caused by M3COM’s breach of this Agreement, M3COM is not responsible for unauthorized access to the M3COM System. Customer will provide M3COM with written notice within five (5) days if (i) information used by Customer to access the Service(s) or M3COM System is lost, stolen, or disclosed to an unauthorized person; (ii) Customer reasonably believes that the M3COM System has been compromised, including any unauthorized access, use, or disclosure of account information; or (iii) any other breach of security in relation to its passwords, usernames, access information, or M3COM System that may have occurred or is reasonably likely to occur.
- The Customer shall not: (i) copy, reproduce, sell, license (or sub-license), lease, loan, assign, transfer, or pledge the Service(s) or any part thereof, or otherwise engage in, whether independently or in conjunction with a third party, any of the foregoing: (ii) modification, copying, displaying, disassembling, decompiling, reverse engineering, revision, enhancing, republishing or creating any derivative works or otherwise merging or utilizing all or any part of the Service(s) with or into any third party materials or components or attempt to access or discover the Service’s source code; (iii) place the Service(s) onto a server so that it is accessible via a public network or use the Service(s) for timesharing or for service bureau purposes; (iv); use the Service(s) that is installed on or embedded or included in any M3COM System other than as permitted or directed by M3COM; (v) remove or add any labels, notices or logos to the M3COM System or Service(s), (vi) perform any act or be responsible for any omission that is illegal, including, without limitation, those enforcing censorship, privacy, government authority restrictions, or by accessing any blocked services, or in M3COM’s discretion otherwise jeopardizes, destabilizes, interrupts or encumbers the M3COM System or its servers and/or has a detrimental impact on M3COM or M3COM’s System; (vii) transmit or upload any spam, viruses, spyware or other harmful, infringing, obscene, threatening, libelous, illegal, disruptive or destructive content, messages or files, or send or store worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs onto any M3COM System; (viii) access any Service(s) or the M3COM System and/or its servers through or use with the Service(s) or M3COM System any unauthorized means, services or tools, including, without limitation, any data mining, robots, or similar automated means or data gathering and extraction tools, including, without limitation, in order to extract for re-utilization of any parts of the Service(s); (ix) use the Service(s) for any purpose other than as permitted by this Agreement, including all Orders. Whether Customer has violated any of the limitations set forth in this Section shall be determined in M3COM’s sole discretion. If M3COM determines a violation has occurred, M3COM shall notify the Customer of the violation and Customer shall be required to cease the violation immediately. M3COM may also determine, in its sole discretion, whether to suspend or block the Customer’s use of the Service(s) or access to the M3COM System, provided, however, that such violation represents a threat, in M3COM’s discretion, to the M3COM System or if so directed by a court of competent authority. In such cases, M3COM will: (i) suspend Customer’s use only to the extent reasonably necessary to prevent any harm to the M3COM System; (ii) use its reasonable efforts to promptly contact Customer and give Customer the opportunity to remedy such violation; and (iii) reinstate any suspended access immediately after any issue as above-mentioned has been resolved, provided if M3COM determines that any such violation was willful or is unable to be adequately remedied, it may immediately terminate this Agreement and/or any impacted Order, without penalty, upon notice to Customer.
- Notwithstanding and without limitation to the language in this Section, all Services are intended for Customer’s own internal operations and not intended for national/international resale of voice and/or data, callback, unauthorized audiotex, international simple resale (ISR), any form of PSTN by-pass operation similar to that of an ISR and other analogous services which are prohibited where any Service is provided, or which operation or service constitutes a bypass of M3COM and/or its underlying carriers, partners, and suppliers of the rightful access/termination charges due them (“Unauthorized Use”).
- Acceptable Use Policy (AUP). An AUP is a set of rules and guidelines that govern the use of the M3COM System. These rules are put in place to protect not only M3COM but also all of our Customers. We reserve the right to modify this AUP at any time. Customer shall not:
- Participate in any illegal activity that could adversely affect M3COM’s legal interests. If Customer resells services, and one of Customer’s end users (“End User”) partakes in any illegal activity that puts M3COM at risk, M3COM will hold Customer responsible for such End User’s actions.
- Use the M3COM System for any hacking/cracking activities. Customer is not allowed to tamper with other accounts, files, programs, etc., on the M3COM System, machines, or assets.
- Perform any risk assessment or security penetration testing including but not limited to penetration tests, internal or external vulnerability assessments that are outside of normal business use to support regular business operations without the express written permission of M3COM.
- Perform any performance benchmark testing which may impact shared service users and/or infrastructure, including but not limited to LAN/WAN bandwidth throughput, storage subsystem testing, and/or CPU benchmarking.
- Use the M3COM System for distribution of illegal material such as pirated software, illegal pornography, or content, credit card information, publishing someone else’s private data (phone number, social security number, etc.) in web pages or other public places.
- Use the M3COM System to launch attacks on others, such as floods, DDoS attacks, email spam, USENET spam, Multi-level marketing type programs, or in any negligent manner that may cause harm or damage to other systems either connected to M3COM or elsewhere on the Internet.
- M3COM takes child pornography seriously. M3COM will fully cooperate with any criminal investigation into a violation of this policy. CHILD PORNOGRAPHY IS STRICTLY PROHIBITED ON ANY M3COM SYSTEM, NETWORKS, SERVERS, AND FROM ANY OTHER SERVICE WE OFFER. M3COM Customers are responsible for the actions of their clients and are liable for illegal material posted by their clients. According to the Child Protection Act, child pornography includes photographs, films, video, or any other type of visual presentation that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years.
In the event of a violation of the AUP, which shall be determined in M3COM’s discretion, M3COM will contact Customer immediately to remedy the violation. M3COM reserves the right to take any action necessary to remedy the violation if Customer is not able, or refuses to, resolve the violation when notified. This may include removing Customer’s server(s) from the M3COM System and termination of Service or this Agreement.
- In the event that Customer violates the provisions of this Master Services Agreement, including without limitation any of the terms and conditions as set forth in this Section 8: (a) CUSTOMER SHALL BE DEEMED IN MATERIAL BREACH OF THIS AGREEMENT WHICH IS NOT CAPABLE OF A CURE, (b) M3COM RESERVES THE RIGHT TO TERMINATE, WITHOUT LIABILITY TO IT, THE APPLICABLE SERVICE AT ANY TIME IMMEDIATELY WITHOUT NOTICE SHOULD M3COM DETERMINE, IN ITS SOLE DISCRETION THAT THE SERVICE, OR ANY OF THE LINES, ARE BEING UTILIZED FOR AN UNAUTHORIZED USE AND/OR FOR OTHER THAN AN AUTHORIZED USE (INCLUDING ANY USE PROHIBITED BY THIS SECTION 8); AND (c) IN ADDITION TO ANY AND ALL OTHER RIGHTS OF M3COM FOR A MATERIAL BREACH OF THIS AGREEMENT BY CUSTOMER WHICH IS NOT DEEMED CAPABLE OF BEING CURED (INCLUDING, WITHOUT LIMITATION, THE RIGHT FOR COMPENSATION TO M3COM DUE TO EARLY TERMINATION OF THE SERVICES) M3COM ALSO RESERVES THE RIGHT TO COLLECT MONETARY COMPENSATION DUE TO REVENUE LOSS RESULTING TO ITS UNDERLYING CARRIERS, PARTNERS, SUPPLIERS, AND/OR PROVIDERS DUE TO SUCH UNAUTHORIZED USE AND/OR FOR OTHER THAN AN AUTHORIZED USE (INCLUDING ANY USE PROHIBITED BY THIS SECTION), INCLUDING WITHOUT LIMITATION, AN AMOUNT EQUAL TO ANY RIGHTFUL ACCESS OR TERMINATION CHARGE PREVAILING AT THE TIME THE UNAUTHORIZED USE WAS COMMITTED FOR THE TYPE OF TRAFFIC PASSED VIA THE BYPASS SERVICE OR PRACTICE COMMITTED BY CUSTOMER TO THE APPLICABLE NETWORK INCLUDING, WITHOUT LIMITATION, THE M3COM SYSTEM, PLUS 50% OF SUCH ACCESS OR TERMINATION CHARGE (COLLECTIVELY, THE “BYPASS COMPENSATION”). Such Bypass Compensation shall be payable, without limitation, from the time the bypass activity was conducted by the Customer until its cessation. M3COM shall likewise pass on, and Customer agrees to accept and immediately pay, all other claims and damages incurred by M3COM directly or indirectly as a result of such Unauthorized Use.
Section 9. Indemnification
- Subject to Section 10 hereof, Customer hereby agrees to indemnify, defend, protect, and hold harmless M3COM, its employees, agents, providers, suppliers, officers, and directors (the “Indemnified Persons”), from and against, any claims, demands, actions, liabilities, damages, losses, costs, and expenses (including, without limitation, reasonable legal fees and court costs), arising out of the negligence or misconduct of Customer in the performance of, or related to, Customer’s duties or obligations under this Agreement.
- The Customer agrees to indemnify, defend and hold harmless M3COM, its Affiliates, agents, underlying carriers, partners, providers, and suppliers from any claims, demands, actions, liabilities, damages, losses, costs, and expenses (including ,without limitation, reasonable legal fees and court costs and including, without limitation, those incurred in connection with settling, defending, or appealing any claims or actions brought), arising out of, or relating to, (a) Customer’s breach of any representation, warranty or covenant contained in this Agreement, (b) Customer’s customers and/or end users including, without limitation, the use of a Service by the Customer or its customers and/or end users, (c) claims of third parties seeking damages for any loss or misuse of data by the Customer or its customers and/or end users, (d) the payment of any Taxes owed by Customer including, but not limited to, any Taxes that M3COM does not collect or remit in reliance upon Customer’s exemption certificate, (e) Customer’s failure to have its facilities, connections, and equipment available to M3COM or its Affiliates, agents, underlying carriers, partners, providers, or suppliers as required by this Agreement, (f) the provisioning or functioning of any Customer Tail Circuit, (g) any violation of the terms of Section 8, above (Use of Service), and (h) Customer’s failure to obtain and maintain authorizations necessary to provision the Services.
Section 10. Credits; Disclaimer of Warranties; Limitation of Liability
To the extent set forth herein, in the applicable Order Form, and in the SLA effective as of the date M3COM accepts the applicable Order Form, in the event of any interruption in a Service other than due to maintenance by M3COM (“Service Outage”), Customer shall be entitled to a service credit equivalent to the proportionate MRCs for that particular Service, for the period during which the Service Outage occurs. Such Service Outage shall only apply if (i) Customer provides written notice of such Service Outage within twenty-four (24) hours of such Service Outage, and (ii) M3COM can verify the existence of such Service Outage utilizing industry standard practices. Notwithstanding anything herein to the contrary, no credits for a Service Outage shall be available to Customer to the extent such Service Outage is caused by a Force Majeure Event or directly or indirectly by the Customer, Customer’s customer and/or end users, or Customer’s Affiliates, agents or invitees. Notwithstanding anything to the contrary contained in the Agreement, such credit shall be the Customer’s sole and exclusive remedy with respect to the failure or non-performance of a Service. The Customer shall not be entitled to any credits during any period during which it is past due on amounts owed to M3COM. If M3COM does not receive Customer’s written request for any applicable credit within thirty (30) calendar days of the Service Outage, or otherwise fails to comply with the provisions of this Section 10 for reporting a Service Outage, Customer shall be deemed to have waived its right to the credit for that particular Service Outage. No service credits shall be available for a Service Outage of less than thirty (30) minutes. Under no circumstance shall a Service Outage be deemed a default under this Agreement.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND THE INDEMNIFICATION OBLIGATIONS OF CUSTOMER AS SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE HOWSOEVER ARISING, FOR LOSS OF REVENUE, PROFIT, GOODWILL, ANTICIPATED SAVINGS, DATA, OR OTHER PURE ECONOMIC LOSS, OR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL LOSSES, COSTS, LIABILITIES, OR DAMAGES, WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH, THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS UNDER OR OTHERWISE RELATED TO, THE AGREEMENT AND/OR THE APPLICABLE ORDER FORM, INCLUDING, BUT NOT LIMITED TO, LOSSES, COSTS, LIABILITIES, OR CLAIMS STEMMING FROM A DATA BREACH.
THE SERVICE(S) AND THE M3COM SYSTEM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. M3COM MAKES NO WARRANTY, REPRESENTATION, OR INDEMNITY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE DELIVERY OR PERFORMANCE OF ANY SERVICE, THE M3COM SYSTEM, OR ANY WORK TO BE PERFORMED UNDER THE AGREEMENT, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, SATISFACTORY QUALITY OR NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. M3COM ALSO SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICE OR THE M3COM SYSTEM WILL BE ERROR FREE, SECURE, OR UNINTERRUPTED EXCEPT TO THE EXTENT MANDATORILY REQUIRED BY APPLICABLE LAW. THE CREDITS SET FORTH HEREIN CONSTITUTE THE ONLY WARRANTIES MADE BY M3COM TO THE CUSTOMER WITH RESPECT TO THE SERVICE AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED.
The Parties expressly agree that no claim for losses or damages whatsoever in connection with the Agreement or any Service(s), including indemnification under the provisions of Section 9, shall be made more than one (1) year after the date that the event giving rise to such claim is known or reasonably should have been known to the Party making such claim.
Notwithstanding any provision of the Agreement to the contrary, M3COM’s maximum cumulative liability to the Customer (if any), in connection with this Agreement shall be limited to the aggregate amount of Fees that have actually been paid by the Customer to M3COM with respect to the Service on which the claim is based during the four (4) months prior to the time the claim is made.
Section 11. Default
- In addition to the termination rights as set forth within this Agreement, a default shall occur hereunder if (a) in the case of Customer’s failure to pay any amount when due for the applicable Service or otherwise pursuant to this Agreement; (b) Customer is in breach of any other provision of this Agreement or the Order and Customer fails to cure such breach within ten (10) days after notice specifying such breach, (c) Customer makes a material misrepresentation in any submission to M3COM, or (d) an Event of Insolvency occurs with regard to a Party.
- Except as otherwise set forth herein, in the event of any default, the non-defaulting Party may avail itself of one or more of the following remedies: (a) terminate the applicable Service(s); and/or (b) pursue any legal remedies it may have under applicable law or principles of equity, including specific performance. Without limiting the foregoing, if the default consists of a failure of the Customer to pay M3COM any Fees or other amounts due, M3COM, in addition to all other remedies and at it sole discretion, may terminate or suspend any and all of its obligations in respect of such Service, any other Service(s) and the Agreement. In the event any such Service is terminated pursuant to this Section, Customer shall owe to M3COM, in addition to any Fees or other amounts due prior to such termination, the applicable Early Termination Fees as described in Section 5 of this Agreement. In such case, M3COM may also apply any and all amounts previously paid by the Customer toward the payment of any other amounts then or thereafter payable by the Customer under the applicable agreement(s) including, without limitation, this Agreement.
Section 12. Force Majeure Events
Neither Party shall be in default under the Agreement if, and to the extent that, any failure or delay in such Party’s performance of one or more of its obligations hereunder is caused by a Force Majeure Event, and such Party’s performance of such obligation or obligations shall be excused and extended for and during the entire duration of any such Force Majeure Event. Notwithstanding the foregoing, a Force Majeure Event shall not excuse or extend Customer’s obligation to pay any amount owed M3COM when due. The Party claiming relief under this Section shall promptly notify the other Party in writing of the existence of the event relied on and the cessation or termination of said event, and the Party claiming relief shall exercise reasonable commercial efforts to minimize the time of any such delay.
Section 13. Representations
Each Party represents and warrants to the other that: (a) it has full right and authority to enter into the Agreement and that by entering into the Agreement, it is not in violation of its organizational documents, or any law, regulation, or agreement by which it is bound or to which it is subject; (b) its execution, delivery, and performance of the Agreement has been duly authorized by all requisite corporate action; (c) that the persons signing the Agreement on its behalf are authorized to do so; (d) it is a business entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization or incorporation; and (e) there are no actions, suits, or proceedings pending or threatened against it before any court or administrative agency that would materially impair its performance under the Agreement.
Section 14. Overages
The specifications set forth in the Order Form as to bandwidth constitute the “Committed Access Rate” which shall be calculated in accordance with the following. Should the Customer burst the physical capacity of the port, then additional charges, in excess of those set forth on the Order Form will be charged as follows (“Overages”).
(a) Usage/Burstable-based Billing. The minimum interface rate for the Burstable Billing option is 1Mb/s. For Burstable Billing, the Customer contracts for a selected Committed Access Rate and M3COM provides Customer the capability to burst up to the physical capacity of the port. The amount of Burstable Bandwidth is derived from the 95th percentile calculation described below. The 95th percentile calculation is based on industry standard ‘Base 10’ method where 1 kilobits per second (Kbps) equals 1,000 bits per second. The Burstable Bandwidth Charge described below will be invoiced to the Customer in arrears and is in addition to the Flat Rate Billing for the selected Committed Access Rate.
(b) “Burstable Bandwidth” calculation. M3COM polls the routers and switches for Customer ingress and egress usage at five minute intervals. The higher usage number for each poll is stack ranked. The top 5% of the usage number is discarded. The next highest measurement is the Burstable Bandwidth.
The “Burstable Bandwidth Charge” = (Burstable Bandwidth – Committed Access Rate) * (Burstable Bandwidth price per Megabit).
Invoices for Overages shall be payable within fifteen (15) days of the date sent by M3COM to the Customer.
Section 15. General
- Notices. All notices and other communications required or permitted under the Agreement shall be in writing and in the English language, and shall be deemed to have been delivered to the other Party’s Notice Address (set forth on the applicable Order Form) in the absence of evidence of earlier delivery: (a) on the delivery date, if delivered by hand or by email; (b) the next Business Day after being deposited for delivery with a recognized overnight courier; or (c) five (5) Business Days after deposit in the mail. Either Party may, by similar notice given, change the Notice Address to which future notices or other communications shall be sent.
- Assignment and Transfer Restrictions. The Customer may not transfer or assign all or any part of its interest under the Agreement, or delegate any duties, burdens, or obligations arising hereunder, without the prior written consent of M3COM. A transfer or assignment by Customer in violation of this Section shall constitute a material breach of the Agreement and shall be null and void from its inception. M3COM may assign this Agreement, in whole or in part, to any Affiliate, or in the case of merger, acquisition, sale of substantially all of the assets or other similar transaction of M3COM, without the consent of the Customer.
- Governing Law; Venue. The Agreement shall be governed by the laws of the Commonwealth of Virginia without reference to its principles of conflict of laws, and the Customer irrevocably consents and submits to personal jurisdiction in the United States District Court for the Eastern District of Virginia or the State Courts located in the County of Fairfax, Virginia for all causes arising under the Agreement.
- Waiver. The failure of M3COM at any time to enforce any right or remedy available to it under the Agreement, or otherwise, with respect to a breach or failure to perform by Customer shall not be construed to be a waiver of such right or remedy.
- Rules of Construction. The captions or headings in the Agreement are strictly for convenience and shall not be considered in interpreting the Agreement or as amplifying or limiting any of its content. Words in the Agreement which import the singular connotation shall be interpreted as plural, and words which import the plural connotation shall be interpreted as singular, as the identity of the parties or objects referred to may require. Unless expressly defined herein, words having well known technical or trade meaning shall be so construed. All listing of items shall not be taken to be exclusive, but shall include other items, whether similar or dissimilar to those listed, as the context reasonably requires. Except as set forth to the contrary in the Agreement, a Party’s right or remedy shall be cumulative and without prejudice to any other right or remedy, whether contained therein or not. The Agreement has been fully negotiated between, and jointly drafted by, the Parties.
- Modification; Ranking. From time to time, the provisions of this Agreement may be modified by M3COM. Any such modification shall be reflected on the website at www.m3comva.com/terms-and-cond.../. Such modification will become effective thirty (30) days after publication of the modified Terms and Conditions. In the event that any such modification is of material detriment to Customer and is not required by applicable law, Customer must inform M3COM of its objection within fifteen (15) days of publication of the new Terms and Conditions. Alternatively, M3COM may update these Terms and Conditions, from time to time, and will provide notice to Customer at the email address on file for Customer with M3COM. Such updates will become effective fifteen (15) days after such notice to Customer. In the event that any such update would be of material detriment to Customer and is not required by applicable law, Customer must inform M3COM of its objection within ten (10) days of receiving the notice provided under this provision. In the event of an objection to an update or modification to these Terms and Conditions, the Parties shall negotiate, in good faith, a modification to the Terms and Conditions and, should the Parties not be able to reach agreement within sixty (60) days of such objection, either Party may terminate the portion of the Services affected by the change, without penalty, by written notice. Notwithstanding the foregoing, however, any use of the Service(s) after expiration of the date to lodge an objection to such modification or update as set forth in this Section, will constitute Customer’s acceptance of the update or modification. Except as otherwise provided in this Section, this Agreement may only be modified by a written amendment (provided electronically or otherwise) executed by authorized representatives of both Parties. In no event will handwritten changes to any terms or conditions, including in the applicable Order Form, be effective. If there is any inconsistency between a provision of the Master Services Agreement, a provision in the applicable SLA, and the applicable Service Order Form, then the Master Services Agreement shall take priority, followed by the Order Form, then the SLA.
- No Third Party Beneficiaries. No provision of the Master Services Agreement shall be enforceable by any third party.
- No Personal Liability; Immunity. Each action or claim against a Party arising under or in relation to the Agreement shall be made only against such Party as a business entity, and any liability relating thereto shall be enforceable only against the assets of such Party.
- Relationship of the Parties. The Parties shall perform all of their duties under the Agreement as independent contractors or independent parties and shall discharge their contractual obligations at their own risk, subject, however, to the terms and conditions thereof. The relationship between the Parties shall not be deemed to be that of an agent, principal, partners, or joint venturers, and nothing contained in the Agreement shall be deemed to constitute a partnership or agency agreement between them for any purposes. The Parties understand and agree that, except as specifically provided in the Agreement, neither Party grants the other Party the power or authority to make any commitments on behalf of or to otherwise bind the other Party.
- Expenses. Unless as otherwise set forth in this Agreement, all costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, any stamp and capital duties and taxes incurred in connection with entering the Agreement shall be paid by the Party incurring such costs and expenses.
- Performance. Customer expressly agrees and acknowledges that, notwithstanding anything herein to the contrary, while M3COM shall be responsible for all of the obligations ascribed to it under the Agreement, M3COM’s underlying carriers, partners, suppliers, providers, representatives, Affiliates and/or agents may perform such obligations including, without limitation, any part of the Service.
- Severability; Survival. If any term, clause, provision, covenant, or condition contained in the Agreement is adjudicated to be illegal or unenforceable, all other terms, clauses, provisions, covenants, or conditions of the Agreement shall remain in force, and the term, clause, provision, covenant, or condition held illegal or unenforceable shall remain in effect as far as possible in accordance with the intention of the Parties. Notwithstanding anything herein to the contrary, the provisions of this Agreement shall survive its termination in order to interpret the rights, obligations, and understanding of the Parties.
- Counterparts; Electronic Signature. The Agreement and any associated Order Forms may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument. The Parties agree that this Agreement and any associated Order Forms may be executed via electronic signature (including, without limitation, original signatures sent via facsimile or computer) and such electronic signature shall be enforceable for or against such signing Party as if and fully to the extent of an original signature.
- Integration. The Agreement and all other documents incorporated herein by reference, constitutes the entire agreement between the Parties and supersedes all prior or contemporaneous conditions, agreements, communications, or representations, whether oral or written, relating to the subject matter hereof. A Party has not relied on any statement or representation by an employee or agent of the other Party in entering into this Agreement. Except as set forth in Section 15(f), this Agreement may not be modified except in a writing signed by a duly authorized representative of each Party. No provision of the Agreement shall be interpreted for or against any Party hereto by reason that said Party or his, her, or its legal representative(s) drafted all or any part thereof.
- Waiver of Jury Trial. EACH OF THE PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.