This Master Service Agreement (the “Agreement”) shall control the business terms and conditions for the purchase and provisioning of certain Services to be more clearly defined in supporting Service Orders, by and between the Customer as defined in the respective Service Order(s), and PS Lightwave, Inc. (“PS Lightwave”) (referred to collectively as “Parties”, and individually as a “Party”).
AGREEMENT. The terms of this Agreement shall apply to the purchase of all Services, and acceptance of PS Lightwave’s Service Level Agreement (“SLA”), Acceptable Use Policy (“AUP”), and Product Description Sheets (“PDS”), all of which are incorporated herein by reference (collectively referred to as Schedules) (posted at www.pslightwave.com). This Agreement does not, by itself, order any services. Orders for services are placed and documented by use of a Service Order each time Customer orders one or more services, which Service Orders shall be incorporated by reference herein and governed by the terms and conditions of this Agreement. In the event of any conflict between this Agreement and the terms of any Service Order (with the exception of any special conditions noted in an applicable Service Order) precedence will be given to the terms of this Agreement. Unless otherwise agreed to in writing by PS Lightwave, no terms and conditions endorsed upon, delivered with or contained in Customer’s purchase orders or in any other similar document, will amend or vary the provisions of this Agreement.
- Subject to the Customer placing Service Orders and PS Lightwave accepting such Service Orders as contemplated herein, Customer agrees to purchase, and PS Lightwave agrees to provide, the services described in executed Service Orders ("Service Order") that comprise a part of this Agreement and that are agreed to by both parties (the "PS Lightwave Services"), as well as Third Party Service described in Section 6 of this Agreement (PS Lightwave Services and Third Party Service, collectively or individually, the "Services"). PS Lightwave Services may consist of any combination of those found in PS Lightwave’s product description sheets. All Services shall be provided only according to the terms and conditions in this MSA and as specified in a Service Order placed by Customer.
Services provided by PS Lightwave to the Customer, are entirely independent, separate and distinct from any services which may be provided by a property owner and are not included as part of any agreement executed by and between a property owner and its tenants and occupants.
- CUSTOMER’S PREMISES. Customer authorizes PS Lightwave, with reasonable notice where permission shall not be unreasonably withheld or delayed, and its employees, agents, contractors and representatives to enter Customer’s premises to install, maintain, inspect, repair and remove CPE, in order for PS Lightwave to perform its obligations and to exercise its privileges under this Agreement, including provision of working space and reasonable storage space, subject to Customer’s reasonable and customary security, safety and environmental procedures.
- TERM AND COMMENCEMENT DATE.
- This Agreement shall begin upon the execution of any service order or the date the last party executes this Agreement and shall remain in effect throughout the duration of any and all service term(s) until the expiration or termination of the final existing Service Order(s) entered into under this Agreement, whichever occurs last.
- The Term of each Service Order commences when testing of the Service has been completed and the Service is operating within specifications set forth in this Agreement and either Customer has accepted the Service or is deemed to have accepted the Service. However, when PS Lightwave releases the applicable Services for the Customer’s use, the Term shall begin regardless of whether Customer has procured services from third-party vendors required to operate the Services or whether Customer is otherwise prepared to accept delivery of the provisioned Services (“Commencement Date”). When multiple Services are included in a single Service Order, the Service Term of the entire Service Order (and of each Service included in the applicable Service Order) will begin as of the date on which the last or final Services are released for the Customer’s use; however, invoicing shall begin upon the Commencement Date.
- PAYMENT & BILLING TERMS. Customer shall pay the fees and other charges for each Service Order.
- Pre-Payment. Within fifteen (15) days of the date on which Customer executes a Service Order, Customer may be required to pay PS Lightwave all non-recurring charges designated on such Service Order as “Non-Recurring Charges” (“NRC”). At PS Lightwave’s sole discretion, the NRC may be based on a schedule for payment to be specified in the terms and conditions of a Service Order.
- Invoicing.PS Lightwave bills for one (1) full month of Monthly Recurring Charges (“MRC”) in advance. Each MRC covers Services delivered from the first of the month through the end of the month. PS Lightwave will bill Services in arrears or as otherwise provided by the Service Order.
- First Invoice. The first invoice will be sent to the Customer following the Commencement Date. The invoice will include prorated MRC from the Commencement Date to the end of the month and any applicable non-recurring charges. When multiple Services are included in a single Service Order, Customer agrees to pay PS Lightwave the MRC and any additional charges associated with those Services that are installed or activated even though the Commencement Date for the entire Service Order has not commenced. Invoices shall be delivered via email (regular mail only if Customer requests for an additional fee).
- Payment of Invoices. All invoices are due upon receipt and become past due thirty (30) days from the invoice date (the “Delinquency Date”). If PS Lightwave is not in receipt of any payment on or before the Delinquency Date, such payment becomes a Late Payment. At PS Lightwave’s discretion, in addition to the Customer’s obligation to pay such Late Payment, Customer will pay a Late Charge of $30.00 on the Late Payment and interest on the Late Payment (“Late Payment Interest”) at a rate equal to 1.5% (or the highest amount permitted by law) per month or portion thereof, on the outstanding balance unpaid for more than thirty (30) days; however a minimum interest charge of $1.00 will be assessed for each billing period subject to a finance charge. In no event, however, shall the charges permitted under this Section or elsewhere in this Agreement, to the extent the same are considered to be interest under applicable law, exceed the maximum lawful interest rate. PS Lightwave shall not be prevented from exercising any of the other rights and remedies available to PS Lightwave hereunder or under any applicable laws. PS Lightwave shall have the right to suspend or terminate Services if an account is past due for more than thirty (30) days from the Delinquency Date. If PS Lightwave has to take action of any kind to collect any balance due, then Customer agrees to pay PS Lightwave’s reasonable expenses, including but not limited to all reasonable and necessary attorney and collection agency fees.
- Taxes and Fees. Except for taxes based on PS Lightwave’s net income and ad valorem, personal and real property taxes imposed on PS Lightwave’s and not Customer’s owned or leased property, Customer is responsible for payment of all property, sales, use, gross receipts, excise, building access, bypass, franchise, or other local, state, and federal taxes and/or fees, however designated, imposed on, or based upon the provision of the Services.
- Disputed Invoices. If Customer reasonably disputes any portion of a PS Lightwave invoice, Customer must pay the undisputed portion of the invoice in accordance with the terms and conditions of this Agreement or associated Service Order and submit a written claim to PS Lightwave for the disputed amount. All claims must be submitted to PS Lightwave within sixty (60) days from the invoice date for those Services. Customer waives the right to dispute any charges not disputed within the time frame set forth above. In the event the dispute is resolved against Customer in accordance with the procedures hereunder, Customer shall pay such amounts plus interest within ten (10) business days of receipt of notice of the determination from PS Lightwave.
- Credit Review and Other Assurances. In order to support Customer’s payment obligation, PS Lightwave may perform a credit review of Customer from time to time. Based on Customer’s credit review and/or other information available to PS Lightwave (including any history of delinquent payments), PS Lightwave may require at any time Customer provide adequate assurances that Customer will pay all obligations as they become due. To avoid confusion, Customer understands that PS Lightwave may require Customer to provide a deposit either as a condition precedent to the beginning new Services and/or any time during existing Services.
- Special Construction, Non-Recurring or Acquisition Costs. Notwithstanding anything to the contrary in this Agreement, if PS Lightwave is required to construct or acquire telecommunications facilities from a third party, or both, in order to provide Service, the estimated charges applicable to the construction or acquisition must be approved in writing prior to PS Lightwave commencing such construction or acquisition. If Customer cancels this Agreement or any Service Order involving construction or acquisition after the acceptance of a Service Order but prior to the Commencement Date, Customer shall reimburse PS Lightwave for all unpaid costs and expenses incurred by PS Lightwave in connection with the construction or acquisition up to the time of cancellation. This payment obligation is in addition to any other rights and remedies PS Lightwave may have at law, in equity, or as provided in this Agreement.
- THIRD PARTY SERVICES. In conjunction with Service provided, PS Lightwave may, upon Customer's request, arrange for Service to be provided by a third party (''Third Party Service"), such as local access service, interexchange service, or international service, PS Lightwave shall not be obligated to provide any Third Party Service except in connection with a Service Order. In the event Customer requests that PS Lightwave order Third Party Service, PS Lightwave shall make provision and coordinate the installation of such Service and conduct the initial testing of an interconnection between the PS Lightwave Service and Third Party Service. PS Lightwave will not begin billing Customer for such Third Party Service until related PS Lightwave Service is available. Customer may be required to execute a letter of authorization ("LOA"), in a form provided by PS Lightwave, authorizing PS Lightwave to deliver such Third Party Service to Customer's location. When Customer requests international service, PS Lightwave may arrange for the foreign end point of the Service or for a portion of the foreign end point of such Service to be provided by a third party carrier licensed in the relevant foreign point. In some cases, PS Lightwave may be unable, and Customer may be required, to arrange the foreign end of such Service with a foreign carrier. Although this MSA governs the terms of PS Lightwave's arrangement of Third Party Service, service level parameters and related warranties (if any), surcharges, outage credits, required commitments, termination liability, limitations, and other service-specific terms of the Third Party Service shall be those of the provider of the Third Party Service (''Third Party Provider''). All charges incurred by PS Lightwave for such Third Party Service, including without limitation monthly recurring charges, installation charges, non-recurring charges; and applicable termination/cancellation charges of the Third Party Provider, shall be invoiced to Customer and Customer shall be responsible for the full timely payment thereof.
- CANCELLATION AND SERVICE PORTABILITY.
- Customer may cancel an existing Service (a “Cancelled Service”) without incurring any cancellation or early termination fees or penalties, so long as:
- The Cancelled Service has not been installed and in use; and
- The Cancelled Service is replaced with another On-Net Service having equal or greater On-Net Service MRCs and equal or greater term commitment (the “Replacement Service”); and
- The Replacement Service is ordered within thirty (30) calendar days of the effective date of the cancellation of the Cancelled Service (the effective date of cancellation being the “Cancellation Date”); and
- PS Lightwave determines, in its sole discretion, that adequate capacity is available on the PS Lightwave Network for the Replacement Service; and
- Customer is not otherwise in breach of the Agreement.
- If Customer fails to meet any of the above criteria for any particular Cancelled Service, Customer shall pay all applicable early termination fees for such Cancelled Service. Customer shall also be liable for any third-party expenses which are charged to PS Lightwave by a third party as a result of any Cancelled Service.
- To exercise this portability option, Customer must, prior to the date that Customer cancels the Cancelled Service, notify PS Lightwave in writing of its intent to replace a Cancelled Service with a Replacement Service. PS Lightwave shall credit Customer all applicable early termination fees charged to Customer’s account, provided that Customer orders the Replacement Service within thirty (30) days of the Cancellation Date. Notwithstanding the foregoing, in no event shall Customer be credited back for any On-Net Service installation non-recurring costs or any third-party expenses that were charged for any Cancelled service which Customer cancels pursuant to this Section.
- Customer may cancel an existing Service (a “Cancelled Service”) without incurring any cancellation or early termination fees or penalties, so long as:
- Change in Service Level. Customer may increase or reduce services provisioned under an existing Service Order by providing PS Lightwave with a minimum of thirty (30) days advance, written notice to be confirmed in an addendum to be executed by and between the Parties. Should Customer decrease service, Customer shall pay all applicable charges calculated on the balance of the term for such reduced service. Customer shall also be liable for any third-party expenses which are charged to PS Lightwave by a third party as a result of any reduction in service. PS Lightwave reserves the right to modify its network or the facilities used to provide the Services and shall use reasonable effort to notify Customer of any planned maintenance.
- CUSTOMER PREMISE EQUIPMENT (CPE). When specifically provided for in the Service Order, PS Lightwave, will pay for, provide, install, maintain, operate, control and own any network access device connected to the PS Lightwave network, which CPE shall at all times remain the property of PS Lightwave, regardless of where located or attached. Customer agrees to comply with all instructions and requirements regarding the use and/or care of PS Lightwave’s CPE and to take reasonable measures to protect the CPE at all times. Customer will provide a secure, air-conditioned space to house the CPE and sufficient electricity (with certified earth ground) to operate the CPE. Customer agrees to pay PS Lightwave the replacement value of any lost, stolen, damaged or unreturned CPE. PS Lightwave will replace any of our CPE that does not perform as specified, at no charge to the Customer, unless PS Lightwave determines, in our sole discretion, that Customer is directly or indirectly responsible for the CPE failure. PS Lightwave services do not include the installation or maintenance of any inside wiring at the Customer’s service address. The installation and maintenance of inside wiring for the Customer’s telecommunications and computer network is the Customer’s sole responsibility.
- MULTIPLE USERS. Customer shall have sole responsibility for ensuring that all other end users who use PS Lightwave Services through Customer’s facilities understand and comply with the terms and conditions of this Agreement and any or all Services Orders. Customer further acknowledges and agrees that Customer is solely responsible and liable for any and all breaches of the terms and conditions of this Agreement, subsequent Service Orders, SLA and AUP, whether such breach is the result of use of the PS Lightwave Services by Customer or by any other end user of Customer’s computers, facilities or Services.
- End User. An End User is a user of Customer’s Services and shall include any Customer, purchaser, lessor, employee, agent, donee, reseller or any other such person who uses PS Lightwave Services is through, as a result of, connected with or otherwise enabled because of the commercial relationship between PS Lightwave and Customer. Customer is liable for any and all End User charges, whether or not Customer receives payment or reimbursement for the same from End Users.
- Unauthorized Equipment. If Customer installs or furnishes, or permits any end user to install or furnish equipment or other property for use in connection with Services (“Unauthorized Equipment”) in any area owned or controlled by PS Lightwave, their respective contractors or agents, and if Customer fails to remove (or cause the End User to remove) such Unauthorized Equipment from such area within ten (10) days after the expiration of the applicable Service Term or termination of the applicable Service Order, PS Lightwave may, without notice or demand and in addition to any other right or remedy available at law or equity, take possession of such Unauthorized Equipment, without being guilty of trespass. PS Lightwave may use all force necessary to effect such entry, to remove Customer, to remove any person or End User, or to remove any or all of Customer's or End User’s Unauthorized Equipment from such areas and store the same, all at Customer's expense. Any Unauthorized Equipment removed may be stored in any public warehouse or elsewhere at the costs of and for the account of Customer, and PS Lightwave shall not be responsible for the care or safekeeping thereof. Customer expressly waives any and all claims for loss, destruction, damage, or injury, which may be occasioned by any of the aforesaid acts, and shall ensure that all End Users agree to a substantially similar waiver. Any Unauthorized Equipment so removed will be returned to Customer upon payment in full of all storage costs, past due fees and charges. If within ten (10) days following such Unauthorized Equipment removal, Customer has not requested the return of its Unauthorized Equipment and paid all sums owed, then PS Lightwave may exercise all rights of ownership over such Unauthorized Equipment including the right to sell same and retain possession of any sale proceeds. Customer understands that PS Lightwave’s exercise of any remedies provided for in this section shall be without prejudice to any other remedies PS Lightwave may have provided for herein or by applicable law.
- TERMINATION. Termination of Services by either Party will occur without liability when one or more of the following conditions occur:
- if either Party violates any law, rule regulation or policy of any governmental authority related to the Services;
- if either Party makes a material misrepresentation to the other in connection with the ordering or delivery of Services;
- violates any provision of PS Lightwave’s SLA; or
- if either Party engages in any fraudulent use of Services; or if a court or other governmental authority prohibits the furnishing of any Services under this Agreement; or if either Party files bankruptcy or fails to discharge an involuntary petition within sixty (60) days.
- Termination by Customer for PS Lightwave Default. In the event Customer shall assert PS Lightwave is in default under any term or provision of this Agreement, or any applicable Service Order, Customer will give PS Lightwave written notice of such default with sufficient detail to allow PS Lightwave to attempt to cure such default. If PS Lightwave commences to cure such default within five (5) days after receipt of such notice and thereafter proceeds with the curing of such default with reasonable diligence and completes the curing of such default within thirty (30) days after receipt of such written notice, then no default on the part of PS Lightwave shall be deemed to have occurred. However, if PS Lightwave does not commence curing such default within such five (5) day period, or PS Lightwave does not thereafter proceed with the curing of such default with reasonable diligence, or if PS Lightwave does not complete the curing of such written default within thirty (30) days after PS Lightwave's receipt of such notice, then Customer may on twenty-four (24) hours written notice terminate the Service Order as to which such default relates (if such default relates to a particular Service Order), or terminate this Agreement (if such default relates to this entire Agreement). In the event of a breach of the warranties set forth herein, Customer’s sole remedy is termination as described in this Section.
- Termination of Services by PS Lightwave for Customer Default. Termination of Services by PS Lightwave will occur without liability when one or more of the following conditions occur:
- Non-payment of any undisputed invoice amounts within sixty (60) days after receipt. A service interruption notice will be sent to the Customer in the Notices section (Item 14.e.) via U.S. Mail Return Receipt Requested, electronic mail transmission, and/or certified mail when an invoice becomes forty-five (45) days past invoice date. Suspension of Services pursuant to this paragraph shall not relieve Customer of its obligation to pay charges during the time period in which Services are suspended. Should PS Lightwave agree to reconnect Services, Customer shall pay a reconnection fee of $300; or
- If Customer fails to cure its breach of any of these terms or conditions or any Service Order, AUP or SLA within ten (10) days after written notice thereof provided by PS Lightwave; or
- Failure to provide the appropriate credit report or assurances to PS Lightwave at any point during the Term of this Agreement and any subsequent Service Order, addendum, or supplement; or
- Failure to allow PS Lightwave’s employees, agents, representatives or contractors the necessary access as described in Section VI.A.
- Effect of Termination. Upon the effective date of termination of this Agreement:
- PS Lightwave will immediately cease providing the Service(s); and
- Any and all payment obligations of Customer under this Agreement for Service(s) provided through the date of termination will immediately become due; and
- PS Lightwave assess and collect from Customer any applicable termination charges that may be due hereunder or under an active Service Order; and
- PS Lightwave pursues all other remedies available to PS Lightwave at law or in equity.
- Early Termination. PS Lightwave has established pricing under this Agreement based, in part, on Customer’s promise to utilize and pay for the Services through the expiration of the entire Service Term of each Service Order. If Customer desires to terminate any Services after PS Lightwave’s acceptance of the Service Order and prior to expiration of the Service Term, Customer may do so by providing written notification thereof to PS Lightwave at least thirty (30) days in advance of such termination pursuant to Item 13.e. In the event of termination of Services, Customer shall pay to PS Lightwave, prior to the effective date of such termination, an amount equal to the Termination Charge, which shall be equal to the sum of:
- Any NRC applicable to the terminated Services to the extent not already paid by Customer, even if previously waived; and
- Any applicable early termination penalty which may be provided for in an individual Service Order; and
- Any termination costs payable by PS Lightwave to any third party associated with any portion of the applicable terminated Service being provided on any Third-Party Facilities; and
- Any reasonable internal costs that are not otherwise recovered by PS Lightwave through the payment of the amounts set forth in (i) thru (iii) above; and
- All non-recurring and recurring charges that were waived or discounted by PS Lightwave. Customer agrees that PS Lightwave’s damages will be impossible to ascertain if any Service is terminated and that the foregoing early termination charge establishes liquidated damages and is not a penalty.
- INDEMNITY & LIMITATIONS OF LIABILITY.
- Subject to the other provisions of this Agreement, Customer and PS Lightwave shall defend, indemnify and hold harmless the other from and against any loss, debt, liability, damage, obligation, claim, demand, judgement or settlement of any nature or kind, known or unknown, liquidated or unliquidated, of any third party, including without limitation all reasonable costs and expenses, such as reasonable litigation costs and attorneys’ fees (“Claim”), relating to damage to tangible property or bodily inury, or wrongful death, to the extent such Claim arises out of the negligence or willful misconduct of the respective indemnifying party, its employees, agents or contractors in connection with the Agreement or the provision of Services hereunder. THE PARTIES INTEND THAT THE INDEMNITY OBLIGATIONS IN THIS SECTION SHALL APPLY PROPORTIONALY EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE SOLE, JOINT OR CONCURRENT NEGLIGENCE OR OTHER FAULT, WHETHER PASSIVE OR ACTIVE, OF PS LIGHTWAVE, ITS AFFILIATES, SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS.
- Customer Indemnity. Subject to the other provisions of the Agreement, Customer agrees to release, defend, indemnify and hold harmless PS Lightwave, its officers, directors, employees, contractors and agents from and against any Claim to the extent such Claim (i) is brought by a downstream customer of Customer or an end user and arises out of an alleged defect in or failure of Service; or (ii) arises out of or relates to the content transmitted over PS Lightwave’s network, whether sent by Customer, including without limitation, claims relating to any violation of copyright law, export control laws, or that such transmissions are libelous, slanderous or an invasion of privacy or illegal. THE PARTIES INTEND THAT THE INDEMNITY OBLIGATIONS IN THIS SECTION SHALL APPLY PROPORTIONALY EVEN IF CAUSED, IN WHOLE OR IN PART, BY THE SOLE, JOINT OR CONCURRENT NEGLIGENCE OR OTHER FAULT, WHETHER PASSIVE OR ACTIVE, OF PS LIGHTWAVE, ITS AFFILIATES, SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS.
- Damages / Causes of Action.
- For purposes of this Section, the term “PS Lightwave” shall be deemed to include PS Lightwave, its Affiliates, owners, directors, officers, employees, and any person or entity assisting PS Lightwave in its performance pursuant to this Agreement.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE LIABILITY OF PS LIGHTWAVE TO CUSTOMER, (A) FOR BODILY INJURY OR DEATH TO ANY PERSON OR FOR DAMAGE TO ANY REAL OR TANGIBLE PROPERTY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF PS LIGHTWAVE SHALL BE LIMITED TO CUSTOMER’S RIGHT TO PROVEN DIRECT DAMAGES, AND (B) FOR ALL OTHER DAMAGES OTHER THAN THOSE SET FORTH IN SUBSECTION (A) AND NOT OTHERWISE EXCLUDED OR LIMITED BY THIS AGREEMENT, SHALL, IF PS LIGHTWAVE IS JUDICIALLY DETERMINED TO HAVE SOME LIABILITY TO CUSTOMER, FOR WHATEVER REASON, ARISING UNDER OR RELATED TO ACTS OR OMISSIONS RELATED TO THIS AGREEMENT, IN THE AGGREGATE FOR ALL SUCH ACTS OR OMISSIONS, BE LIMITED TO AN AMOUNT EQUAL TO THE RECURRING CHARGES UNDER THIS AGREEMENT FOR THE FIRST SIX (6) MONTHS OF THE TERM HEREOF.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY, PS LIGHTWAVE SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED BY CUSTOMER OR ANY END USER ARISING FROM OR RELATED TO ANY FORCE MAJEURE EVENT.
- NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL CUSTOMER OR PS LIGHTWAVE OR THEIR RESPECTIVE AFFILIATES BE LIABLE TO EACH OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE (OTHER THAN SUCH DAMAGES AS MAY BE INCLUDED AS A COMPONENT OF LIQUIDATED DAMAGES OR TERMINATION CHARGES UNDER THIS AGREEMENT) SUFFERED BY SUCH OTHER PARTY AS A RESULT OF THE PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, OR ITS ACTS OR OMISSIONS RELATED TO THIS AGREEMENT WHETHER OR NOT ARISING FROM SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, VIOLATION OF LAW, BREACH OF CONTRACT, BREACH OF INDEMNITY PROVISIONS, BREACH OF WARRANTY OR ANY OTHER THEORY OR SOURCE, WHETHER OR NOT FORESEEABLE AND EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, AND EACH PARTY HEREBY RELEASES THE OTHER PARTY THEREFROM. IN ADDITION, PS LIGHTWAVE SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATING TO: INTEROPERABILITY, ACCESS OR INTERCONNECTION PROBLEMS WITH APPLICATIONS, CPE, SERVICES, CONTENT OR NETWORKS NOT PROVIDED BY PS LIGHTWAVE; SERVICE INTERRUPTIONS OR LOST OR ALTERED MESSAGES OR TRANSMISSIONS (EXCEPT TO THE EXTENT OF SERVICE CREDIT ALLOWANCES SPECIFIED IN THE RELEVANT PRODUCT SUPPLEMENT) OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF CUSTOMER’S OR ANY THIRD PARTY’S APPLICATIONS, CONTENT, DATA, PROGRAMS, INFORMATION, NETWORK OR SYSTEMS.
- THE INDEMNIFIED PARTY SHALL PROMPTLY NOTIFY THE INDEMNIFYING PARTY IN WRITING OF ANY CLAIMS WHICH ARE SUBJECT TO THE TERMS OF THIS SECTION. THE INDEMNIFIED PARTY SHALL HAVE THE RIGHT AT ITS OWN EXPENSE TO APPOINT ITS OWN COUNSEL WHO SHALL BE ENTITLED TO PARTICIPATE IN ANY SETTLEMENT NEGOTIATIONS OR LITIGATION REGARDING ANY MATTER FOR WHICH IT IS ENTITLED TO BE INDEMNIFIED HEREUNDER. THE INDEMNIFYINIG PARTY SHALL NOT AGREE TO ANY SETTLEMENT OR CONSENT TO ANY DECREE, ORDER OR JUDGMENT WITHOUT OBTAIINING THE CONSENT OF THE INDEMNIFIED PARTY, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
- Service Credits. Customer’s sole remedy for any failure of Service is the right to receive service outage credits, if applicable and as set forth in PS Lightwave’s Service Level Agreement (“SLA”) which can be viewed at pslightwave.com.
- Limitation of Representations and Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PS LIGHTWAVE MAKES NO WARRANTY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, INFRINGEMENT, TITLE, COMPLETENESS OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY SERVICES PROVIDED OR NOT PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES BY PS LIGHTWAVE ARE HEREBY EXCLUDED AND DISCLAIMED. Customer agrees that PS Lightwave does not monitor, exercise control over, nor accepT responsibility for the content of the information passing through or contained within PS Lightwave’s facilities, host computers, network hubs and points of presence (the “PS Lightwave Network”) or the Internet, or the content of the information residing on the Customer’s equipment or transmitted over its network, and is not liable for the content of any data transferred either to or from the Customer or stored by Customer or any of Customer’s clients via the ServiceS provided by PS Lightwave. Customers shall indemnify and hold PS Lightwave harmless for any claims, losses or damages arising out of or related to Customer’s content or use of any information residing on Customer’s equipment or transmitted over its network. Use of any information obtained via PS Lightwave’s services is at Customer’s own risk. PS Lightwave specifically denies any responsibility for the accuracy or quality of information obtained through its services. IN THE EVENT THAT PS LIGHTWAVE PROVIDES CUSTOMER WITH PRODUCTS IN CONJUNCTION WITH THE SERVICES (I.E., THIRD PARTY SOFTWARE PRODUCTS OR EQUIPMENT), PS LIGHTWAVE ALSO PROVIDES SUCH PRODUCTS AS IS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, OR IMPLIED.
- Survival and Duration. These indemnification provisions and obligations shall survive this Agreement and as set forth, represent the entire liability of PS Lightwave and Customer’s sole and exclusive remedies, with respect to any claim subject to indemnification under this Agreement.
- NETWORK DISRUPTIONS & SECURITY
- PS Lightwave shall have no liability whatsoever for any damage to or loss or destruction of any of Customer’s hardware, software, files, data or peripherals caused by network disruptions. The installation, use, inspection, maintenance, repair and removal of the CPE may result in network disruptions, service outages or potential damage to Customer’s network operations. Customer therefore agrees to take reasonable precautions during use of the Services. In the event of an emergency, PS Lightwave has the right to perform maintenance and/or restoration of its facilities, including but not limited to actions required to restore continuity to a severed or partially severed fiber optic cable, restore dysfunctional power and ancillary support CPE, or correction of any potential harmful conditions. PS Lightwave shall notify Customer as soon as is reasonably practicable of any further disruptions to Services related to the emergency event.
- PS Lightwave shall not be liable for any third-party network breaches on Customer’s premises, equipment, software or hardware. Customer assumes the risk of any unauthorized third-party access to Customer’s network. PS Lightwave makes an effort to keep its network secure but no network is perfect. Customer should take whatever steps it deems necessary to ensure its data is not accessed by unauthorized third parties.
- INSURANCE.To insure against all risks of loss and damage from the Commencement Date, Customer agrees to maintain in force throughout the term of this Agreement, at its own expense, Employer’s Liability insurance and Commercial-General Liability in an amount not less $1,000,000 as required for operations under this Agreement. Upon request, Customer shall provide PS Lightwave a certificate of insurance that evidences the minimum levels of required insurance and includes and/or names PS Lightwave as an additional insured.
- GENERAL TERMS
- Assignment. This Agreement shall be binding upon and inure to the benefit of Customer, PS Lightwave and their respective Affiliates, successors, assigns, officers, directors, employees and agents. Customer may not assign this Agreement or any of its rights or responsibilities hereunder without the advance written consent of PS Lightwave, and any attempt by Customer to do so shall be void and of no effect. Consent shall not be unreasonably withheld; however, Assignee of Customer may be required to complete and be approved as credit worthy prior to PS Lightwave’s acceptance of assignment and shall agree in writing to accept all the terms and conditions here, without exception. PS Lightwave’s rights and obligations under this Agreement may be assigned to any business entity, which succeeds to ownership or operation of the PS Lightwave Services. Notwithstanding the above, either party may assign this Agreement and any of its rights or obligations hereunder to any Affiliate or to any Person, including but not limited to, any entity which acquires the business or assets of Customer to which this Agreement relates, whether by merger, purchase or otherwise, but the other party to this Agreement is not bound by any assignment until such party has received written notice of such assignment signed by both the assignor and the assignee.
- Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.
- Force Majeure. Neither party shall be liable to the other or in default of this Agreement, nor shall any credit allowance or other remedy be extended, for any failure of performance or CPE due to causes beyond such party’s reasonable control including but not limited to any catastrophic event, earthquakes, weather or other Acts of God, wars, civil disturbances, revolts, sabotage, theft, vandalism, transportation disasters, explosions, fire, acts or omissions of suppliers, fiber/cable cut, equipment or power failure, rodent damage, flood, any law, order or regulations or requests of any governmental entity, national emergency, terrorist activities, insurrections, riots, any acts or restraints of government or any regulatory authority, work stoppages or disruptive labor activities, global or natural disasters or like events, lack or delay in transportation, or failure of a third party to grant or recognize a right beyond the reasonable control of the party delayed. Both parties shall be excused from such performance to the extent, but only to the extent, that it is prevented, hindered or delayed by such causes. Upon the occurrence of any of such events, the party whose performance is prevented, interrupted, hindered or delayed shall give prompt notice to the other party, updating such notice at regular intervals regarding such event and the effect thereof, and use reasonable efforts to continue performance notwithstanding such cause. Financial inability to perform shall never be deemed a force majeure event unless it is caused by a moratorium on banking operations.
- No Waiver. No failure by either party to enforce any rights hereunder shall constitute a waiver of such right(s).
- Notices.Notices hereunder shall be deemed properly given when delivered. If delivered in person, or when sent via facsimile, overnight courier, electronic mail or when deposited with the U.S. Postal Service. Customer shall notify PS Lightwave of any changes to its address listed on any Service Order.
If to PS Lightwave:
5959 Corporate Drive, Suite 3300
Houston, Texas 77036
- Entire Agreement. This Agreement, any Confidentiality and Non-Disclosure Agreement that PS Lightwave and Customer have executed or a similar type of agreement, and the attached and incorporated Service Orders, Change Orders, Exhibits, if any, contain the entire Agreement of the parties and there are no representations, inducements, promises, agreements, arrangements or undertakings, oral or written, between the parties to this Agreement other than those set forth in this Agreement and duly executed in writing, and supersedes all previous representations, understandings or agreements. No modification of this Agreement may be made except in writing signed by both parties.
- Governing Law. The validity, interpretation, enforceability and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Texas.
- Jurisdiction & Venue. ALL PARTIES HEREBY SUBMIT TO THE EXCLUSIVE JURSIDICTION OF THE STATE DISTRICT COURT OF HARRIS COUNTY, TEXAS AND HEREBY AGREE THAT ANY SUCH COURT AND ONLY SUCH COURT SHALL BE THE PROPER FORUM AND VENUE FOR THE DETERMINATION OF ANY DISPUTE ARISING HEREUNDER. EACH PARTY WAIVES ALL DEFENSES OF EACH OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS. PROCESS MAY BE SERVED ON EITHER PARTY IN THE MANNER AUTHORIZED BY APPLICABLE LAW OR COURT RULE.
- Consent to Electronic Contracting. By entering into this Agreement, the Parties consent during term of this Agreement:
(i) to conduct this transaction and enter into Service Orders, SLAs, billing and other agreements electronically;
(ii) to use electronic signature and records in connection with this Agreement, any amendment of this Agreement and any Service Order or other document issued under this Agreement; and
(iii) to receive electronic mail and other electronic communications with respect to any document or transaction relating to or regarding this Agreement and the Services PS Lightwave provides to Customer, including any Service Order, invoice, billing, notice, certificate, consent or record.
The Parties may provide documents to each other electronically by email that include attachments or embedded links. The delivery of any Party to the other of an electronic signature to this Agreement or any notice hereunder, shall have the same effect as the delivery of an original signature.
- WAIVER OF JURY TRIAL & ATTORNEYS’ FEES.
- Waiver of Jury Trial. Each Party hereby irrevocably waives its rights to trial by jury in any action or proceeding arising out of this Agreement or the transactions relating to its subject matter.
- Attorney’s Fees. The Parties agree that if either Party to the Agreement brings any civil action related in any manner to the Agreement, the prevailing party in such civil action shall recover all of its reasonable attorneys’ fees and litigation expenses incurred from the non-prevailing Party.
- REGULATIONS. The Parties agree that in the event of a decision by a telecommunication regulatory authority at the federal, state or local level necessitates material modifications in this Agreement, the Parties will negotiate in good faith to modify this Agreement in light of such decision. Customer warrants that the traffic which Customer places on each Service will have no more than ten percent (10%) interstate traffic component. Upon request, Customer will make its record available to PS Lightwave for inspection and verification of such warranty.
- DISPUTE RESOLUTION. Except under circumstances requiring immediate injunctive relief, any dispute, controversy or claim arising out of or relating to the Agreement, the Parties’ performance under it, or its breach (“Dispute”) shall, upon the written request of either Party, be dealt with in accordance with the dispute resolution process before resorting to litigation.
- Executive-Level Negotiations. If any Dispute is not resolved promptly in the ordinary course of business, either Party may request to resolve such Dispute through face-to-face executive level negotiations, as provided herein, before resorting to litigation. Any such executive level negotiations shall be initiated within five (5) business days (or such other period as the Parties shall otherwise agree) of the date of written notice from the requesting Party to the other Party of the Dispute ("Negotiation Notice"), which Negotiation Notice shall be delivered to the other Party in accordance with the notice section of the applicable, disputed Service Order, and shall: (i) outline the allegations that form the basis of any anticipated compliant; (ii) invite a written response within a reasonable period of time; and (iii) request to initiate to executive level negotiations within the aforementioned five (5) day time period. All executive Level negotiations shall be conducted by a management representative of each Party with authority to settle the Dispute. Either Party may elect, upon two (2) business days written notice to the other Party, to bring its legal counsel to such executive level negotiations. The location, form, frequency, duration and conclusion of the executive level negotiations will be at the discretion of the Parties' representatives; provided, however, that either Party shall be entitled to terminate executive level negotiations at any time.
- Non-Binding Mediation. If the Parties do not resolve the Dispute in accordance with the negotiation process set forth above, the Dispute must be submitted to non-binding mediation before an independent mediator, who shall be mutually designated and agreed upon by the Parties. All costs associated with non-binding mediation shall be borne equally by the Parties.
- Settlement. Completion of Dispute Resolution Process. All matters resolved pursuant to this Section shall be documented through the Parties' execution of a written settlement agreement. The Parties agree that the refusal or failure of either Party to participate in executive levels discussions, as described herein, or to otherwise engage in good faith informal dispute resolution efforts, including but not limited to non-binding mediation above, shall constitute an unjust and unreasonable practice. In the event any Dispute is not resolved through the dispute resolution process set forth herein, either Party may seek any legal remedies to which it may be entitled before any Harris County State District Court.
- Effect of Dispute Resolution. All conferences, discussions and correspondence that occur in connection with the dispute resolution procedures conducted shall be deemed settlement discussions, and nothing said or disclosed, nor any document produced, which is not otherwise independently discoverable, shall be offered or received as evidence, or used for impeachment or for any other purpose, in any current or future litigation. Unless otherwise agreed, each Party shall bear its own costs and expenses, including attorneys' fees, incurred in connection with the dispute resolution process, except that the expenses and fees for independent mediation services, and for any independent facilities used for mediation, if any, shall be shared equally between the Parties.
- If PS Lightwave and Customer have executed a Confidentiality and Non-Disclosure Agreement or similar agreement, the Parties agree that the terms therein shall apply to any disclosure made hereunder and remain in full effect throughout the term of the Agreement. If no such agreement is in effect, Customer and PS Lightwave agree to maintain in strict confidence all technology, research and development, business affairs, pricing, trade secrets, and other proprietary information of the other party disclosed under the Agreement. No obligation of confidentiality shall apply to disclosed information that is in the public domain (through no violation of this Section by recipient) that the recipient: (1) already possesses at the time of disclosure without obligation of confidentiality; (ii) develops independently; or (iii) rightfully receives without obligation or confidentiality from a third party. The Parties’ obligations under this Section shall survive expiration or termination of the Agreement.
- If the recipient is required by law, rule, regulation or court order to disclose any confidential information, the recipient will promptly notify the disclosing party in writing prior to making any such disclosure in order to facilitate the disclosing party seeking a protective order or other appropriate remedy from the appropriate body. The recipient agrees to cooperate with the disclosing party in seeking such order or other remedy. The recipient further agrees that if the disclosing party is not successful in precluding the requesting legal body from requiring the disclosure of the confidential information, it will furnish only that portion of the confidential information which is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the confidential information.
- Neither party shall use the other’s name in publicity or press releases without obtaining the other’s prior written approval.
- CONSTRUCTION OF AGREEMENT. By execution of this Agreement, the Parties acknowledge that they have read and understood each provision, term and obligation contained in this Agreement. This Agreement, although drawn by one Party, shall be constructed fairly and reasonably and not more strictly against the drafting party than the non-drafting Party. Customer acknowledges and understands that it has had the opportunity to review this agreement with independent counsel and enters into this agreement with full knowledge and understanding of its terms and conditions.
- HIRING PROHIBITION. During the term of this Agreement, the Customer or any of its affiliates will not, directly, or indirectly, for their own account or for or on behalf of any other person or entity, whether as an officer, director, employee, partner, principal, joint venture, consultant, investor, shareholder, independent contractor or otherwise, hire or employ, or attempt to hire or employ, in any fashion (whether as an employee, independent contractor or otherwise), any employee or independent contractor of PS Lightwave, or solicit or induce, or attempt to solicit or induce or take away, any of PS Lightwave’s employees, consultants, clients, Customers, vendors, suppliers, or independent contractors to terminate their relationship with PS Lightwave or the other party.