MASTER SERVICE AGREEMENT
This Agreement (“Agreement”) contains the general terms and conditions applicable to purchases of services (“Services”) from NetDiverse.
- Service Delivery. Requests for Services will be on NetDiverse orders (“Orders”) stating the pricing and term (“Service Term”) for which Services are requested. The Service will continue on a month to month basis at the expiration of the Service Term at NetDiverse’s then current rates. Any order to disconnect a service after the initial Service Term will be processed 30 days after the written request is received by NetDiverse. NetDiverse will try, but is not obligated, to provide Services by requested or otherwise committed delivery dates. Should NetDiverse determine to accept Orders, the Service Term will commence when the Service is installed (“Service Commencement Date”). Unless Customer notifies NetDiverse within 3 days of the Service Commencement Date that Service is not working properly, the Service will be deemed accepted and billing will commence on the Service Commencement Date. Customer will at its expense provide suitable access to non-NetDiverse facilities or power required for Service delivery or removal of equipment. Title to all equipment and software provided by NetDiverse remains with NetDiverse. NetDiverse’s then current Acceptable Use and Privacy Policies (available at www.netdiverse.com/) apply to Customer’s use of Service. Moves, Adds, and Changes may be requested by Customer through email, fax or in writing after initial Services are provided and initial Service Term begins. Each request to add new or additional Services, if accepted and provided by NetDiverse, will begin a new Service Term for the new Services equal to the time length of the maximum initial Service Term on Orders unless specified otherwise on the Service request communication. If no Service Term is specified in an initial or subsequent Order or request, the minimum Service Term of 24 months will be used for initial Services or additional Services. If pricing is not communicated following the request for new or additional Service, NetDiverse pricing that is typical for the existing Services shall be used for the new or additional Services.
- Charges. Invoices are delivered monthly. Fixed charges are billed in advance and usage-based charges are billed in arrears, partial months being prorated. NetDiverse’s standard charges apply to moves, adds or changes agreed to by NetDiverse. Payment is due upon Customer’s receipt of invoices and is past due 30 days after the invoice date (“Payment Deadline”). Past due amounts bear interest at the lesser of 1.5% per month or the highest rate allowed by law. Customer agrees to pay all Service charges, even if incurred as the result of unauthorized use. If Customer disputes an invoice, Customer will pay the undisputed amount by the Payment Deadline and submit written notice of the disputed amount detailing the nature of the dispute and the invoices disputed. Disputes must be submitted within 90 days of the date of the invoice or the right to dispute is waived. If a dispute is resolved against Customer, Customer will pay the disputed amounts plus interest from the Payment Deadline within 30 days. NetDiverse may require a security deposit of up to 6 months estimated charges at any time; unused deposits will be refunded after the expiration or termination of this Agreement. If any change in applicable law or regulation affects the delivery of Service, NetDiverse may pass any increased costs through to Customer and Customer may terminate the affected Service without termination liability by delivering written notice to NetDiverse within 30 days.
- Taxes and Tax Like Fees. Except for NetDiverse’s net income tax, Customer is responsible for all taxes, fees, surcharges, license fees and other tax like charges imposed on or incident to the provision, sale or use of Service (whether imposed on NetDiverse or its affiliates) Such charges may be billed as cost recovery fees. Valid exemption certificates will be given prospective effect upon receipt by NetDiverse.
- Maintenance. Maintenance of the Service may but ordinarily will not result in limited Service interruptions. Customer will not attempt maintenance of the Service. Customer is responsible for the costs of maintenance required by acts or omissions of Customer.
- Termination. If (i) Customer fails to pay NetDiverse any undisputed charges when due and such failure continues for 5 business days after written notice from NetDiverse or (ii) either party fails to observe any other material term of this Agreement and such failure continues for 30 days after written notice from the other party, then the non-defaulting party may terminate this Agreement or any Order, in whole or in part, and subject to the limitations of this Agreement, pursue any remedies it may have at law or in equity. If Customer terminates Service for convenience or NetDiverse terminates Service for cause, Customer will pay NetDiverse a termination charge equal to the sum of: (a) all unpaid amounts for Service actually provided; (b) any waived charges for the Services(s); (c) 100% of the remaining monthly recurring charges (if any) for month 1 through the end of the Service Term; and (e) any termination liability payable to third parties by NetDiverse resulting from the termination.
- LIABILITY LIMITATIONS. NEITHER PARTY WILL BE LIABLE FOR ANY DAMAGES FOR LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, THE COST OF PURCHASING REPLACEMENT SERVICES, OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES IN ANY WAY RELATED TO THIS AGREEMENT OR ANY ORDER. NETDIVERSE WILL HAVE NO LIABILITY FOR ANY CLAIMS RELATING TO 911 OR OTHER EMERGENCY REFERRAL CALLS. NETDIVERSE MAKES NO WARRANTIES OR REPRESENTATIONS RESPECTING THE SERVICE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Service Levels. The Service level commitments (“Service Levels”) for Services are stated in the applicable Service Schedules for each Service. Service Levels generally do not apply to services provided by third parties, during periods of force majeure or during Service maintenance (“Excused Outages”). If NetDiverse does not meet a Service Level (based on NetDiverse’s records) applicable service credits will be issued upon Customer’s request to NetDiverse Customer Service. Credits must be requested within 60 days after the event giving rise to the credit. Customer’s sole remedies for any outages, failures to deliver or defects in Service are contained in the Service Levels (if any).
- Assignment. Customer may not resell the Services or assign its rights or obligations under this Agreement or any Order without the prior written consent of NetDiverse, not to be unreasonably withheld. Customer will indemnify and defend NetDiverse, its affiliates and their agents against any claims related to any use or resale of Service. Nothing in this Agreement, express or implied, confers upon any third party any right, benefit or remedy under this Agreement.
- Miscellaneous. The terms of this Agreement and all information of a confidential nature acquired in performing this Agreement are confidential and will not be disclosed to third parties. NetDiverse may provide notices under this Agreement to any address identified in an Order. Notices to NetDiverse will be made in writing to the address below. Services may be provided by NetDiverse or its affiliates. This Agreement is the entire agreement between the parties respecting the subject matter hereof and can only be modified in a writing signed by both parties. Neither party will be liable, nor will any remedy provided by this Agreement be available, for any failure to perform due to causes beyond such party’s reasonable control. If either party fails to enforce any right or remedy under this Agreement, such failure will not waive the right or remedy. This Agreement will be governed by and construed in accordance with the laws of the State of Montana, without regard to its conflict of laws provisions.
Attn: Legal Notices
825 N 300 W
Salt Lake City, UT 84103