This Master Services Agreement (the “Master Services Agreement” 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.
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.
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 (a) such Order Form is signed by the Customer, (b) returned to M3COM, and (c) 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 each of the three conditions precedent, 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.
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, subject to Section 3(f); and, (d) any and all costs or expenses required to deliver the Service in accordance with the required specifications.
(i) 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 Customer may, without liability, terminate the applicable Service upon thirty (30) days prior written notice to M3COM.
(ii)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 pays M3COM (a) all applicable charges incurred to that date including, without limitation, the Fees, and (b) an early termination fee, which shall be assessed as liquidated damages and not as a penalty to be calculated as follows (“Early Termination Fee”):
The Early Termination Fee shall be due and payable within five (5) business days of the date of termination. Customer acknowledges and agrees that M3COM’s damage resulting from early termination of Services is, at the time this Master Services Agreement and applicable Order Form(s) are effective, difficult to ascertain and the Parties agree that the Early Termination Fee, as defined above, is a reasonable measure of damages to compensate M3COM for the loss of revenue from an early termination. Customer hereby waives any challenge or argument as to the reasonableness of the Early Termination Fee.
M3COM will contact Customer immediately to correct the situation. M3COM reserves the right to take any action necessary to resolve the situation if Customer is not able, or refuses to, resolve the situation when notified. This may include removing Customer’s server(s) from the M3COM System and termination of Service.
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(a) 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 Master Services Agreement.
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. Failure to pay any amount due shall not be considered a Force Majeure Event. 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.
Each Party represents and warrants to the other that: (a) it has full right and authority to enter in to 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.
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 kilo bits 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.