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MASTER SERVICE AGREEMENT
This Master Service Agreement (the "Agreement") shall govern the provision of any software, voice, security, managed services, internet, network, and professional services and related hardware, equipment and products (collectively, the "Services") by CommandLink, LLC ("CommandLink") and its subsidiaries, affiliates, members, directors, officers, employees, contractors, subcontractors, agents or assigns (collectively, along with CommandLink, referred to as "CommandLink Parties" herein) to the Customer identified in the Order Form and any Affiliate (collectively, the "Customer"). Customer and CommandLink may be referred to herein individually as a "party" and collectively as "parties."
1. Agreement. All Services performed or provided by or on behalf of CommandLink Parties shall be subject to the terms and conditions of this Agreement, including any applicable SLA and Services Agreement incorporated into, and made part hereof, pursuant to Section 26 below. CommandLink and Customer shall execute order form(s) detailing the Services provided to Customer ("Order Form"). By this reference, this Agreement is attached to, incorporated into, and made a part of any Order Form. Any capitalized terms not defined herein shall have the meaning given to them in the Order Form. Except where a specific provision in an Order Form expressly provides that it is intended to take precedence over this Agreement, this Agreement shall control in the event any provision of an Order Form conflicts with any provision of this Agreement. Any use of the Services by Customer shall constitute acceptance of this Agreement and any related Order Form. Customer shall receive the Services without the right of resale or distribution, and in accordance with applicable law and the terms of this Agreement. Customer may not sell, resell, sublease, assign, license, or sublicense the Services or any component thereof or use or offer the same on a service-bureau or time-sharing basis. CommandLink Parties may, from time to time and without liability, interrupt Services for maintenance and other operational reasons, and Customer shall not receive any compensation for such interruptions. Such maintenance and operations interruptions are standard practice in the telecommunications industry and necessary for the continued proper operation of the Services. If technically feasible, including if applicable vendors or suppliers provide advance notice to CommandLink, CommandLink shall use commercially reasonable efforts to provide Customer prior notice of such interruptions. CommandLink reserves the sole and exclusive right at any time to determine, limit or revise its Service area or to modify or discontinue any Service or product without liability. If technically feasible, including if applicable vendors or suppliers provide advance notice to CommandLink, CommandLink shall use commercially reasonable efforts to provide Customer prior notice of any such discontinuance or material adverse change to Customer's Service. Prior to mutual execution by the parties, CommandLink has the right to reject all or any portion of an Order Form in its sole discretion. Customer agrees that IP addresses are not guaranteed, transferable or provided for further distribution.
2. Services. CommandLink may provide one or more of the following Services based on the Customer's completion of an Order Form, and all Services provided by CommandLink Parties shall fall into one of the following categories, as determined by CommandLink in its sole discretion:
a. "Managed Services" - Includes network engineering and strategy consultation, custom integration development, managed wireless networks, managed IP phones, managed switches, managed IADs, managed WIFI, managed remote VPN, other managed devices, and/or similar or substitute Services.
b. "Network-as-a-Service" - Network and/or internet connectivity, including ethernet, fiber, broadband, wireless access, and/or satellite using the "Bandwidth|Link" product or "MPLS/Link" product and/or similar or substitute Services.
c. "SDWAN" or "SASE" - Software-defined cloud networking services and similar Services using the "SDWAN|Link," "SASE|Link" or "SecurityILink" products and/or similar or substitute products including certain add-on features such as "VPNILink" or "ZTNAILink".
d. "Security" Managed network security services and similar Services using Managed Detection and Response ("MDR"), Network Detection and Response ("NDR"), and/or Extended Detection and Response ("XDR") products and/or similar or substitute products.
e. "Software" - Use of the CommandLink I.T. Services Management (ITSM) Software Platform product, a software-as-a-service platform, for cloud, Services inventory, Services monitoring and incident alerting, and productivity management and similar products and services, including the following products: "CommandLink|Base"; "CommandLink|Pro"; "CommandIMonitor": "ISP|Link Network Monitoring"; "ISP|Link Resolve Network Monitoring"; "SNMP|Link"; "Command|Alert"; "Command|Automate"; "Command|Desk"; "Command|API" or "CommandLinkISecure" and/or similar or substitute software products (collectively, the "CommandLink Platform").
f. "Voice Services" - Business-class voice over IP ("VoIP") services or similar services, including use of one or more of the following products: (i) "UCaaS|Link"; (ii) "SIP|Link"; (iii) Microsoft Teams voice service; and/or (iv) "CCaaS|Link," and/or similar or substitute products.
g. "Professional Services" - includes services required for installation, implementation, integration, configuring the CommandLink Platform, software development, development of custom software and/or API solutions, engineering and/or project management engagements on SD-WAN, Security, and/or SASE services, recommending and conducting training of Customer personnel, providing training documents, making performance service recommendations, advising on hiring strategies, assessing current processes and operations, drafting operational playbooks/manuals for Customer use, engineering services, project management, and consulting and Services related to the foregoing.
3. Customer and CommandLink Equipment and Obligations.
a. Responsibility. CommandLink is not responsible for the compatibility, provisioning, configuration, maintenance, or management of, or internal equipment for, Customer's information technology infrastructure, including personal computers or other equipment, networks or networking products (e.g., Customer-managed SDWAN, firewall or network switch), electronic systems, hardware or software (collectively, "Customer Premises Equipment" or "CPE") or any other equipment that may be necessary to make such CPE compatible with the Services. Customer shall retain sole control over the operation, maintenance, access, use and compatibility of CPE. Except to the extent CommandLink is managing CPE as a Professional Service hereunder, Customer shall retain sole control over the management of CPE Customer is solely responsible for ensuring that CPE complies with compatibility guidelines provided by CommandLink and shall maintain and repair CPE as necessary for CommandLink to provide the Services. Customer shall protect any equipment, device, hardware, product, or information technology infrastructure supplied by CommandLink Parties or their suppliers or vendors for the provision of the Services ("CommandLink Equipment") from power surges, including through connection to a surge protector. Customer also should consider connecting its CPE to surge protectors and providing backup power supplies as necessary for its locations and CPE. If Customer determines after Installation that such CPE is not compatible with the Services, Customer may:
i. Terminate this Agreement or a particular Service, in which case Customer will be liable for all applicable Termination Fees (defined below) that may apply; or
ii. Request that CommandLink provide equipment in lieu of CPE, in which case CommandLink will charge Customer CommandLink's then standard fee or price for such equipment and charge Customer for the field service technician fee(s) required to install or setup such equipment. After installation of such equipment by CommandLink, this equipment shall be treated as CPE.
b. Warranty Disclaimer. In addition to the warranty disclaimers elsewhere in this Agreement, CommandLink Parties explicitly disclaim any and all warranty or maintenance responsibility for CPE. Any warranty claims, maintenance, or repairs for CPE, or the cost thereof, will be the sole responsibility of Customer. However, if Customer had initially purchased such CPE through CommandLink, CommandLink will honor any remaining warranty pursuant to the terms of any applicable warranty agreement. CommandLink Parties are not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement, including failure of any Customer CPE.
c. Trouble Ticket for CPE. If CommandLink Parties dispatch a field service technician (a "Service Tech") in response to a complaint made by a Customer regarding any Service (a "Trouble Ticket") ultimately determined by CommandLink to be the result of CPE, CommandLink will charge Customer a Dispatch Fee (defined below) for services performed by the Service Tech. For the avoidance of doubt, Customer will not receive any Service Credit (defined below) if CPE is determined by CommandLink to have contributed to the event for which Customer is requesting such Service Credit.
d. Authorized Account Users. Customer shall provide notice to CommandLink via the CommandLink Platform of any Customer personnel that are authorized to use, manage, edit or otherwise make changes to Customer's account ("Authorized Account User").
4. Third-Party Authorizations. Certain software necessary to utilize the Services, primarily for (a) unified communications desktop and mobile phone application tools and (b) security services, web, desktop and mobile applications or clients, may require Customer to accept additional terms and conditions required by the third-party providers of such software. Customer shall have the opportunity to review these terms and conditions and shall comply with any such additional terms and conditions when utilizing these Services.
5. Access and Data. Customer shall be solely responsible for safeguarding any username, identification number, password, license or security key, security token, PIN, credentials or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Services or the CommandLink Platform ("Access Credentials") and may be unable to access its files in the event any Access Credential is lost, forgotten, misappropriated, or otherwise compromised. All Authorized Account Users and other users of the CommandLink Platform shall have their own multi-factor authentication-enabled accounts associated solely with their own identity with their own unique Access Credentials. Customer represents and warrants that all information provided regarding Authorized Account Users and other users of the CommandLink Platform is current, complete, and accurate to the best of Customer's knowledge. Customer, Authorized Account Users, and other users receiving Credentials for the CommandLink Platform as part of Customer's Services shall not transfer, share or borrow Credentials with or from other persons or users. Customer has and shall retain sole responsibility and liability for all Customer data and information, including data in any form or medium that is transmitted, collected, downloaded, or otherwise received directly or indirectly through the Services ("Customer Data"). Customer shall employ all physical, administrative, and technical controls, screening and security procedures and other safeguards necessary to securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services and control the content and use of Customer Data. Customer represents, warrants and covenants to CommandLink that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by CommandLink and used in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law and Customer agrees to indemnify, defend, and hold CommandLink Parties harmless from any claim, liability, cost, loss, or expense arising from any breach or violation of the foregoing representations, warranties and covenants. Customer, at no cost to CommandLink, shall timely provide CommandLink Parties and any other third parties authorization and access to any personnel, property, facilities or equipment to the extent necessary or reasonably appropriate to install, provide or maintain the Services.
6. Service Authorizations, Ownership and License. CommandLink Parties, as applicable, solely and exclusively own and retain all right, title, ownership, control and interest, including any intellectual property rights, in and to the Services, including their operation, maintenance, enhancement, derivatives, modifications, provision and management, and Customer hereby makes all assignments necessary to accomplish or perfect such CommandLink Parties' ownership. Subject to the terms and conditions hereof, CommandLink grants to Customer a limited, personal, non-transferable, non-exclusive, non-sublicensable license to use the Services, during the term of this Agreement or Order Form only, solely for Customer's own internal use of the Services for its own business purposes. Upon expiration or termination of the Services, Order Form or this Agreement, any license granted to Customer by CommandLink shall automatically terminate with respect to the applicable Services. Any feedback or suggestions provided by Customer to CommandLink regarding the Services is non-confidential and may be used by CommandLink for any purpose whatsoever, including improving or modifying the Services, without any acknowledgement, rights or compensation. As agreed by the parties, CommandLink will use commercially reasonable efforts to supply and configure the Services to Customer's CPE to allow Customer to use the Services as part of any Professional Services (see Section 8 below), unless Customer has chosen to supply its own CommandLink-qualified equipment for network and/or internet connectivity.
7. Used and Upgraded Equipment. For any equipment that Customer purchases through CommandLink, CommandLink may supply new or recertified equipment. From time to time and in CommandLink's sole discretion, CommandLink may provide equipment upgrades at no expense to Customer, and Customer agrees to promptly utilize and implement all such upgrades provided by CommandLink to ensure proper functioning of the Services. CommandLink shall have no obligation or liability in connection with any equipment, software, hardware, or documentation not purchased through CommandLink and configured by CommandLink, or for any abuse, misuse, reconfiguration (including the addition of software or other devices to CPE) of or other acts with respect to any equipment, software, hardware or documentation by any person or party other than CommandLink.
8. Setup and Installation; Disconnection and Cancellation; Professional Services.
a. Installation. For purposes of this Agreement, with respect to the following Services, "Installation" shall be deemed complete upon the occurrence of following:
i. For SD-WAN or SASE, if Customer installs or is responsible for install pursuant to Customer's Order Form, "Installation" is complete when equipment and/or hardware are received by or delivered to Customer. For SD-WAN, SASE, or Security that CommandLink installs, "Installation" is complete when such hardware or equipment is physically installed by CommandLink, or two weeks after being delivered, whichever comes first, in CommandLink's sole discretion.
ii. For Voice, "Installation" is complete upon activation of the voice seats, or physical installation of the equipment or two weeks after Voice Service is delivered, whichever comes first, in CommandLink's sole discretion.
iii. For Internet/Network or Network-as-a-Service, "Installation" is complete upon physical installation or activation of the Service by the applicable vendor, which may occur at the applicable building's Main Point of Entry (MPOE), regardless of whether additional wiring is required inside the applicable building to extend to the Customer's suite or termination location, in CommandLink's sole discretion.
iv. For Software or Security, "Installation" shall occur when Customer gains access to the CommandLink Platform or another CommandLink software product, or as otherwise defined in the Order Form or scope of work.
v. For other Services, "Installation" is complete as indicated in the Order Form or scope of work, or if not indicated therein, in CommandLink's sole discretion.
b. Unavailable Services. If CommandLink is unable to successfully install a Service that the Customer originally ordered due to Service unavailability, CommandLink will permit Customer to accept a lower speed Service, if available, or Customer may decline the Service without a Termination Fee. If Customer accepts any replacement Service, Customer will be responsible for any additional installation costs for such replacement Service, including inside wiring, DMARC extension, administration, or special costs or fees.
c. International Shipping. To the extent CommandLink Parties ship any device, hardware, or other equipment to any Location (defined below) or any other address outside of the United States, Customer understands that countries may prohibit the shipment or receipt of network security equipment or other hardware by or to those or other countries or such shipments may be subject to other delays or issues, which may delay or prevent such shipments or installation related thereto. CommandLink has available options for high availability designs with redundant hardware and cold spare hardware strategies which can help alleviate shipping times to these locations. Notwithstanding any other provisions in this Agreement, CommandLink Parties shall not be responsible for and Customer shall not be relieved from any of its covenants or duties under this Agreement as a result of delays or issues related to international shipments and installations related thereto. In the event CommandLink Parties are required to engage in international shipping for the provision of the Services, Customer agrees that it shall be fully responsible for and pay any import Taxes (defined below) and other fees or costs associated with such shipments, regardless of when such Taxes, fees or costs are expended or identified by CommandLink or other persons (such Taxes, fees and other costs related to international shipping may not be identified or billed until after delivery of the international shipment).
d. Disconnection and Cancellation. Requests for disconnection or cancellation of any Service and/or Order Form with respect to a Location (defined below) shall only be valid and binding on CommandLink if (i) such request is sent to [email protected] and sent directly by an Authorized Account User, or (ii) such request is received by CommandLink via a disconnect or billing ticket opened by an Authorized Account User in the CommandLink Platform. Such disconnection requests shall include any related case number or reference and comply with the other terms and conditions of this Agreement and all other written instructions of CommandLink to Customer regarding such requests. Termination Fees (defined and discussed below) may apply.
e. Professional Services. CommandLink shall provide Customer with Professional Services as mutually agreed upon in an executed scope of work or Order Form. Any scope of work or Order Form for such Professional Services shall describe the scope, fees, deliverables, nature of, and other relevant characteristics of any Professional Services being provided by CommandLink to Customer. The scope of work or Order Form shall set forth the fees for the Professional Services, and Customer shall pay CommandLink any such fees subject to the terms and conditions in Sections 10-14 and other relevant provisions of this Agreement. CommandLink shall not be obligated to perform any Professional Services until both parties have mutually agreed upon and executed a scope of work or Order Form with respect to such Professional Services. CommandLink and Customer agree to cooperate in good faith to achieve completion of the Professional Services in a timely manner. The Professional Services shall be performed in a timely and professional manner by CommandLink, consistent with generally-accepted industry standards; provided, however, Customer's sole and exclusive remedy for any breach of this warranty shall be, at CommandLink's sole option, re-performance of the Professional Services or termination of the applicable scope of work or Order Form and return of the portion of the fees paid to CommandLink by Customer for the nonconforming portion of the Professional Services. Customer agrees to provide, at no cost to CommandLink, timely and adequate assistance and other resources reasonably requested by CommandLink Parties to enable the performance of the Professional Services, and CommandLink shall not be liable for any deficiency in the performance of Professional Services to the extent such deficiency results from any acts or omissions of Customer, including Customer's failure to provide assistance and resources as required hereunder. Deliverables subject to the Professional Services shall be deemed accepted by Customer in accordance with the terms of the applicable scope of work or Order Form and any changes to the scope of the Professional Services must be mutually agreed to by the parties in writing.
f. Co-Management Access. If Customer opts to have co-management access to SDWAN|Link and or Security|Link Services, including the ability to change the configuration of such Services, Customer shall give prior notice to CommandLink of any changes to the configuration of such Services via a support case and shall be responsible for any vulnerabilities or other issues or liabilities caused by Customer's access or configuration. If Customer requests that CommandLink fix or otherwise alter or address any issue, change, or vulnerability resulting from such access, Customer shall be liable for engineer consultation or professional services fees as applicable pursuant to Section 21 (Service Fees) of this Agreement.
9. Monitoring. CommandLink Parties have no obligation to monitor the Services; provided, however, subject to the rights and obligations of the parties set forth in Sections 24 and 25 herein, CommandLink (a) may for all Services, monitor for uptime, performance, and related metrics and (b) shall for SD-WAN or Security Services, monitor network, web and application traffic information as needed to manage the delivered Services. CommandLink may disclose information regarding Customer's use of the Services to third parties upon Customer's request or to comply with laws, regulations, or governmental or legal requests or orders or to protect CommandLink in response to Customer's breach of this Agreement.
10. Fees and Payments.
a. Customer shall pay for all Services that CommandLink Parties furnish to Customer at the applicable prices set forth in Customer's Order Form, which do not include Taxes, surcharges (including FCC-imposed Universal Service Fund surcharges on certain Services), equipment, installation, set up or shipping fees. Customer also shall pay and be responsible for all other Taxes, expenses, costs or fees set forth in the Customer's Order Form or otherwise incurred for provision of the Services. For instance, CommandLink may add line items to Customer's monthly invoice for specific applicable local, state and federal Taxes that CommandLink Parties collect and remit to governmental entities in connection with Customer's services. If no specific geolocation data is available for the Services or any related transaction, the default tax address will be assigned by CommandLink as Customer's primary business or billing address with CommandLink, or if unusable or unavailable, the jurisdiction where the business is incorporated or primarily operates. CommandLink Parties also incur certain other variable expenses as a result of local, state and federal regulation, including its payments to governmental entities and to underlying network service providers and its internal expenses and costs of compliance associated with Taxes and regulatory fees and programs. Because these expenses fluctuate, CommandLink charges Customers two, separate monthly surcharges to recover these costs rather than include them in base rates, as follows: (i) a "Regulatory Recovery Surcharge" or "RRS," calculated as a percentage of Customer's recurring (e.g., MRC) fees, service usage and overage charges (e.g., for voice usage or bandwidth overages), and any Termination Fees for the billing period, and (ii) an "Administrative Compliance Surcharge" or "ACS," calculated as a percentage of Customer's non-recurring (e.g., NRC) fees for the billing period. The RRS and ACS are not themselves taxes or fees required by the government; they are surcharges that CommandLink assesses and retains as a cost recovery mechanism. CommandLink may alter the components of the RRS and ACS and increase the RRS and ACS in its sole discretion at any time. If the RRS and ACS were bundled into the base rates, those rates would need to be higher to accommodate potential variation of these expenses.
b. Upon completion of Installation as set forth in Section 8(a) of this Agreement, Customer shall be fully responsible for and pay all upfront, initial or one-time fees and all first monthly fees for Services for which Installation has occurred. Notwithstanding the foregoing or any other provision in this Agreement, Customer shall be fully responsible and liable for all costs, fees and other liabilities or obligations triggered, agreed to, or incurred by CommandLink Parties or other persons for the Services, including CommandLink and third-party provider or vendor cancellation fees, after Customer (i) begins using any Services; and/or (ii) executes in writing or otherwise approves the design review document, other written approval for circuit orders, or other similar scope of work or approval document for the project or Services, including hardware and equipment costs, licensing fees, and termination fees with network vendors; in each case, regardless of whether Installation or other work related to the Services or Products has been completed. CommandLink's first invoice to Customer shall include all monthly recurring charges ("MRC") for the Services (which shall be prorated for a mid-month commencement of Services), plus all non-recurring charges ("NRC") and all applicable excise, sales, use, or other taxes, fees, surcharges, and charges (collectively, "Taxes") as well as any applicable fees associated with mid-month Installation, setup, equipment, sales Tax or shipping, if any. Thereafter, CommandLink shall invoice the MRC to Customer once per month. CommandLink will bill Customer in advance for MRC on the first day of the month in which CommandLink provides Services. By way of example, CommandLink's July 1st invoice will charge Customer for Services to be received from July 1st through July 31st. However, usage-based charges for items such as Wireless/LTE usage, usage based BandwidthLink Internet, long distance or toll-free costs, or Software (e.g., seat licenses) will be invoiced in the billing period after such Services have been provided, and Customer shall be responsible for and pay all such usage charges.
c. Customer understands and agrees that certain Services are contracted under flexible (i) subscription levels; (ii) per license, location, device or user basis; (iii) broadband, data, or other usage-based plans; or (iv) priority data service plans, in each case that are subject to specified use parameters that if exceeded may incur material additional or overage charges for use in addition to or outside of contracted subscriptions, levels or plans. Notwithstanding any other provisions of this Agreement, Customer shall timely pay and be responsible, or immediately reimburse CommandLink, if applicable, for all additional and/or overages charges, including Taxes, costs or fees related to or arising from overages or use of such Services beyond specified, typical or contractual limits. For example, Customer shall timely pay for any and all Taxes and other costs or fees resulting from any activation or use of 4G/LTE/5G, satellite internet such as Starlink based Services, and/or other usage-based Services, or similar, related or successor Services, including for 4G/LTE/5G backup, 4G/LTE/5G supplied by CommandLink, 4G/LTE/5G supplied by Customer, and other usage based BandwidthLink Internet products, which may be subject to significant overage cost risk and fees. Further, exceeding usage for priority data plans (e.g., for Starlink based services) or other such metered usage plans will result in rate limited Services for the remainder of the applicable month that will materially limit the functionality of such Services for the remainder of any applicable month unless Customer elects to add priority data as needed during such month; provided, however, CommandLink does not guaranty the ability to timely upgrade any such flexible levels or plans. Customer shall be solely liable and responsible for selecting and managing its flexible Service parameters and any functionality, additional or overage cost, related Taxes or other costs, fees or risks related to these Services.
d. Unless otherwise agreed by CommandLink, all prices, costs, fees, expenses and other amounts on any Order Form, invoice or other bill shall be expressed in U.S. dollars (USD). If the billing currency ("Billing Currency") for any Service differs from the currency in which CommandLink incurs costs ("Cost Currency"), CommandLink may adjust such Service fees to maintain the originally agreed gross margin in response to significant foreign exchange (FX) fluctuations. The exchange rate on the date the Order Form is executed, as published by Open Exchange Rates or another reputable source chosen by CommandLink, shall serve as the "Base Exchange Rate." If the daily average exchange rate subsequently deviates by five percent (5%) or more from the Base Exchange Rate to CommandLink's detriment (i.e., Billing Currency depreciates against the Cost Currency), CommandLink may adjust the affected Service fees on the next invoice to reflect the current rate. The new rate becomes the Base Exchange Rate for future comparisons. Adjustments will occur no more than once per billing cycle and do not require a contract amendment. This adjustment process applies only where the Billing and Cost Currencies differ. Favorable FX shifts (Billing Currency appreciating five percent (5%) or more) will not reduce prices unless otherwise agreed in writing.
11. Payment Terms and Delinquent Payments. Invoices are due upon receipt. If invoices are not paid within five (5) days from the date of the invoice, they shall be considered late. After such five (5) day period, all unpaid costs and fees will accrue interest at a rate of one and one-half percent (1.5%) per month, compounded monthly, or the highest rate allowed by applicable law. Customer shall be liable to CommandLink and promptly reimburse CommandLink for all costs and expenses incurred by CommandLink (including reasonable attorney's fees and court costs) that CommandLink may incur collecting or attempting to collect late fees or costs. CommandLink also reserves the right to take any actions it deems necessary in its sole discretion upon failure by Customer to make timely payments, including suspending Services, requiring upfront deposits, ceasing acceptance of new orders, or immediately terminating this Agreement or suspending or terminating Services for "cause." CommandLink reserves the right, in its sole discretion, to require Customer to post appropriate advance deposits for new and existing Services. Unless otherwise required by law, deposits may be mixed with other funds and will not earn interest. If Customer breaches this Agreement, and any Order Form is terminated or a Service is cancelled, CommandLink may, without notice to Customer, apply any deposit towards payment of charges due.
12. Regulatory Costs and Rate Increases. CommandLink may increase the MRC or its other rates and fees at any time and Customer shall be obligated to pay such increases as set forth in this Agreement, including as follows: (a) as part of an increase in the RRS or ACS as set forth in Section 10(a), (b) in response to any increase in amounts, rates or fees charged by CommandLink Party's vendors or suppliers for the Services, or (c) upon expiration of the applicable Service Term for an individual Service. If CommandLink increases the MRC or other rates or fees for any reason other than as set forth in this Agreement, Customer may terminate only the Services affected by such MRC or other rate or fee increase without penalty within thirty (30) days of the date of notice of such increases. Any continued use of the Services by Customer thirty (30) days after the date of notice of such increases shall be deemed acceptance of any new costs, prices, or fees.
13. Billing Dispute. Within thirty (30) calendar days following the date of any disputed invoice, Customer must submit all bona fide disputes in writing along with all supporting documentation to [email protected] or open a billing ticket in the CommandLink Platform. Notwithstanding the foregoing, regardless of whether Customer has submitted a bona fide dispute, Customer shall, by the due date of the disputed invoice, pay to CommandLink all invoiced amounts due by the due date or they will be considered late and subject to any late charges set forth in this Agreement. An amount will not be considered in dispute until Customer has submitted a written bona fide dispute in the manner described herein, and the parties will promptly address and attempt to resolve any such dispute. CommandLink, in its discretion, may request additional supporting documentation or reject Customer's dispute. If CommandLink rejects such dispute, CommandLink will notify Customer. If CommandLink determines that the Customer is entitled to Service Credits, CommandLink will credit Customer's invoice for such amount on the next appropriate billing cycle as set forth herein below. Any amounts or invoices not disputed by Customer pursuant to this Section 13 shall be considered final and binding on Customer.
14. Taxes. Customer shall be responsible for and shall pay all applicable federal, state and local Taxes or other similar exactions imposed on or with respect to the Services, whether such Taxes are imposed directly upon Customer or upon CommandLink Parties. For purposes of this Section 14 and for the avoidance of doubt, Taxes do not include any taxes that are imposed on or measured by the net income of CommandLink.
15. Term and Termination.
a. The term of this Agreement shall commence on the date last executed by the parties and continue in effect until the expiration or termination of all Order Forms entered into under this Agreement and deactivation of all Services thereunder, or earlier if terminated by the parties pursuant to this Agreement. The term of the Services for each physical location identified on an Order Form where Services will be installed (a "Location") shall commence upon completion of Installation of each individual Service at such Location as set forth in Section 8(a) of this Agreement (the "Effective Date"). The term for Services will run from the Effective Date for each Location for the minimum term set forth in an Order Form (the "Service Term"), which Service Term is measured from the Effective Date for each Location. Unless otherwise provided, each individual Service Term for a Location shall be as set forth in the Order Form and if no term is specified, a term of thirty-six (36) months shall be assumed. Notwithstanding the foregoing, for the renewal of existing Services that are already installed, unless specified otherwise in the applicable Order Form, the Effective Date for the renewed Service shall be the day after the expiration of the expiring Service Term. Unless Customer requests disconnection or cancellation of a Service by providing CommandLink prior written notice at least thirty (30) days, but no more than one-hundred and eighty (180) days, prior to the end of the applicable Service Term as set forth in Section 8(d) (Disconnection and Cancellation), the Services and obligation to pay for such Services will continue and this Agreement and the applicable Order Form will be automatically renewed and continue after the end of the Service Term for another full Service Term equal in length to the original Service Term.
b. Either party may terminate an Order Form or a particular Services for convenience at any time by providing at least thirty (30) days written notice, but in no case more than one-hundred and eighty (180) days, prior to such termination; provided, however, if Customer cancels, terminates or downgrades a particular Service or Order Form prior to Installation or prior to the end of its Service Term, or the Agreement, Order Form or Services are terminated, cancelled or suspended by CommandLink for cause or for a violation of this Agreement or an Order Form by Customer, termination fees shall apply as set forth in Section 16 of this Agreement (collectively "Termination Fees"). CommandLink may terminate the Agreement, an Order Form, or suspend or cancel any Services for cause, if Customer violates the terms and conditions of this Agreement and does not cure such breach within twenty (20) days of written notice from CommandLink thereof, or at any time and through any means without giving prior notice to Customer if Customer fails to meet its payment obligations under this Agreement, Customer declares bankruptcy or indicates it is unable to pay for the Services hereunder, or CommandLink is required to do so by law or governmental order or request. Upon suspension, cancellation or termination of any Service or this Agreement or an applicable Order Form, Customer's rights to use the Services and any rights, licenses, consents, and authorizations granted hereunder immediately cease and terminate. Upon termination of this Agreement, an applicable Order Form or suspension or cancellation of delivery of the Services to Customer for any reason, Customer agrees to return any CommandLink Equipment to CommandLink in its original condition (excepting normal wear and tear) within five (5) business days of such termination, suspension, or cancellation. If Customer fails to return the CommandLink Equipment within thirty (30) calendar days of such termination, suspension, or cancellation, or refuses CommandLink Parties access to CommandLink Equipment, then CommandLink shall have the right to add the full retail replacement cost for the CommandLink Equipment to Customer's next invoice and Customer shall be immediately liable for the same.
16. Termination Fees. Upon disconnection, cancellation, termination or downgrade of any Service, applicable Order Form, or this Agreement prior to Installation or the end of any applicable Service Term, Customer shall pay CommandLink a Termination Fee for each Location in an amount equal to (a) the MRC set forth on the Order Form multiplied by the number of months remaining in the Service Term, plus (b) any Taxes, surcharges, RRS (including RRS due on the Termination Fee), or fees, plus (c) repayment of any NRCs set forth on the Order Form for the applicable Location that was originally waived or rebated, including costs or expenses for routers, managed routers, firewalls, other managed network devices, circuit-related and/or build costs either charged or waived by CommandLink Parties, and data circuits. Further, Customer shall pay all costs, charges or expenses invoiced by CommandLink for work-in-process performed or incurred as of the time of such disconnect, cancellation, termination or downgrade. Customer may upgrade to a higher grade of Service without an upgrade charge; provided, however, Customer will be responsible for any additional Service, installation and/or equipment charges that are necessary to complete the upgrade. Customer may downgrade a Service without a Termination Fee provided that any applicable Service Term has expired, and Customer pays any additional Service, installation and equipment charges applicable or necessary to complete the downgrade request.
17. Disclaimers. COMMANDLINK PARTIES DO NOT WARRANT OR GUARANTEE THAT THE SERVICES CAN BE PROVISIONED TO EACH CUSTOMER'S LOCATION, OR THAT PROVISIONING OF SUCH SERVICES WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF COMMANDLINK PARTIES HAVE ACCEPTED CUSTOMER'S ORDER FORM FOR THE SERVICES. THE PROVISIONING OF THE SERVICES IS SUBJECT TO NETWORK AVAILABILITY, CIRCUIT AVAILABILITY, LOOP LENGTH, THE CONDITION OF CUSTOMER'S TELEPHONE LINE AND WIRING INSIDE CUSTOMER'S LOCATION, AVAILABILITY OF FACILITIES WITH NETWORK VENDORS, AND CUSTOMER'S COMPUTER/DEVICE CONFIGURATION AND CAPABILITIES, AMONG OTHER FACTORS. EXCEPT AS MAY BE PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" AND "WHERE IS" BASIS WITH ALL FAULTS AND CUSTOMER'S USE THEREOF IS AT CUSTOMER'S SOLE RISK. EXCEPT AS EXPLICITLY SET FORTH HEREIN, COMMANDLINK PARTIES DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS MAY BE PROVIDED IN ANY APPLICABLE SERVICE LEVEL AGREEMENT, COMMANDLINK PARTIES DO NOT WARRANT THAT THE SERVICES WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, SECURE OR FREE OF VIRUSES, WORMS, DISABLING CODE OR CONDITIONS, OR THE LIKE.
18. Limitation on Liability. UNDER NO CIRCUMSTANCES SHALL ANY COMMANDLINK PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INDIRECT OR SPECIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING FOR ANY LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS OF POTENTIAL BUSINESS, WORK STOPPAGE, LOSS OF DATA OR SERVICES, LOSS OF GOODWILL, REGARDLESS OF WHETHER SUCH LOSSES ARE FORESEEABLE. IN NO EVENT SHALL ANY COMMANDLINK PARTY'S CUMULATIVE LIABILITY UNDER THIS AGREEMENT OR WITH RESPECT TO THE SERVICES, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE FEES PAID BY CUSTOMER TO COMMANDLINK FOR THE SERVICES DURING THE THREE (3) MONTH PERIOD PRECEDING THE DATE SUCH CLAIM FIRST AROSE EVEN IF A CUSTOMER IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, COMMANDLINK PARTIES SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES, LIABILITIES, OBLIGATIONS, LOSSES, EXPENSES OR COSTS SUFFERED AS A RESULT OF: (a) ANY INTERRUPTION OR FAILURE OF THE SERVICES; (b) THE DOWNLOADING OR USE OF ANY INFORMATION, DATA OR MATERIALS OBTAINED VIA THE SERVICES OR FROM THE INTERNET; (c) ANY FAILURE TO COMPLETE A TRANSACTION ON THE INTERNET OR USING THE SERVICES OR ANY LOSS OF DATA DUE TO DELAYS, NON-DELIVERIES, MIS-DELIVERIES, OR SERVICE INTERRUPTIONS; (d) ANYTHING BEYOND THE REASONABLE CONTROL OF COMMANDLINK, INCLUDING ANY INTERRUPTION OR FAILURE OF A THIRD PARTY'S SERVICES, SOFTWARE, EQUIPMENT, OR NETWORKS; (e) ANY UNAUTHORIZED OR ILLEGAL USE OR MODIFICATION OF SERVICES OR COMBINATION OF SERVICES WITH OTHER HARDWARE, SOFTWARE OR EQUIPMENT; (f) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE OR DISADVANTAGOUS DATA OR SOFTWARE; (g) UNAUTHORIZED USERS (E.G., HACKERS) OBTAINING OR ATTEMPTING TO OBTAIN ACCESS TO CUSTOMER'S DATA, WEBSITE, COMPUTERS, OR NETWORKS; OR (h) CUSTOMER DATA. CUSTOMER AGREES THAT REGARDLESS OF ANY STATUTE OF LIMITATION TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION OF CUSTOMER ARISING OUT OF OR RELATED TO THE USE OF THE SERVICES OR THIS AGREEMENT MUST BE FILED WITHIN SIX (6) MONTHS AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. CUSTOMER ACKNOWLEDGES THAT COMMANDLINK HAS ENTERED INTO THIS AGREEMENT AND HAS SET ITS PRICES AND TERMS IN PART IN RELIANCE ON THESE LIABILITY AND REMEDY LIMITS, AND THAT THEY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY SERVICE ISSUE, INCLUDING NON-PERFORMANCE OF THE SERVICE, OR THE FAILURE OF THE SERVICE TO MEET THE APPLICABLE SERVICE LEVEL AGREEMENT, SHALL BE TO RECEIVE A CORRESPONDING SERVICE CREDIT.
19. Intellectual Property; Reservation of Rights. Customer acknowledges that the Services and this Agreement contain or include proprietary and confidential intellectual property of CommandLink Parties including their vendors and suppliers that Customer agrees to not disclose to third parties without the prior written consent of CommandLink. The Services shall not be reengineered, reverse engineered, decomposed, or disassembled, and Customer shall not create or recreate the source code for the Services. Customer shall not remove, erase, tamper with or fail to preserve any copyright, trademark, or other proprietary notice printed or stamped on, affixed to, or recorded on or in the Services. The Services provided to or made available to Customer or on CommandLink's website or network are protected by copyright, trademark, patent and other intellectual property laws and international treaties. All websites, service marks, corporate names, trademarks, trade names, logos, domain names and similar information and intellectual property of CommandLink Parties including vendors or suppliers are and shall remain the sole property of CommandLink Parties or applicable vendors or suppliers and nothing in this Agreement shall grant Customer any right, title, interest or license to it or to the same.
20. Acceptable Use Requirements. The Services may only be used for acceptable uses, as determined by CommandLink in its reasonable discretion. Without limiting the foregoing, the following uses are prohibited:
a. Illegal or Prohibited Uses. The Services may only be used for lawful purposes and may not be used for any illegal use or any use that may result in civil or criminal liability or negative publicity. Including, without limiting the foregoing, effecting or participating in any of the following activities via the Services:
i. Storing, posting or transmitting unlawful materials, e-mail or information;
ii. Storing, posting or transmitting harassing, threatening or abusive materials, e-mail or information;
iii. Storing, posting or transmitting defamatory, libelous, slanderous or scandalous materials, e-mail or information;
iv. Storing, posting or transmitting, obscene, pornographic, profane or otherwise objectionable information of any kind;
v. Storing, posting or transmitting materials, email or information that would constitute an infringement upon the patents, copyrights, trademarks, trade secrets or other intellectual property right of others;
vi. Storing, posting or transmitting materials constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, including the U.S. export control laws and regulations;
vii. Storing, posting or transmitting materials that would give rise to liability under the Computer Fraud and Abuse Act;
viii. Storing, collecting, posting or transmitting credit card, debit card, electronic funds transfer numbers or other similar types of data for either a fraudulent or illegal purpose, or in a manner that would permit others to use such data for a fraudulent or illegal purpose;
ix. Collecting or harvesting, without adequate security, a legitimate purpose and/or any required disclosure and consent, any user's personal information including personal health information or personal financial information, or any other third-party information;
x. Performing auto-dialing or "predictive dialing" in an abusive manner;
xi. Trunking or forwarding your CommandLink phone or fax number to other numbers that handle multiple simultaneous calls or to a private branch exchange (PBX) or a key system;
xii. Traffic pumping or access stimulation of calls through the Services;
xiii. Exploiting or harming minors (e.g., exposing them to inappropriate content; asking for personally identifiable information without parental consent, etc.);
xiv. Interfering, inhibiting, compromising, or otherwise harming the Services (regardless of intent or knowledge);
xv. Transmitting any material that contains viruses, time or logic bombs, Trojan horses, worms, malware, spyware, or any other programs that may be harmful or dangerous;
xvi. Acting in an illegal, indecent, offensive, threatening, harassing, defamatory, libelous, fraudulent, malicious, disruptive, tortious, or other objectionable manner;
xvii. Creating a false caller ID identity (i.e., ID spoofing), forge addresses or headers, or otherwise mislead others about a sender's identity or origin;
xviii. Using while driving or otherwise in an unsafe manner;
xix. Sending, initiating or procuring the transmission of unsolicited bulk email, spam, content (including commercial advertising or information), or any other form of duplicative or unsolicited electronic communications in violation of applicable laws, including CAN-SPAM requirements;
xx. Using any device, system, network, account, plan, or the Services in an unauthorized manner or in excess of reasonable business use.
xxi. Taking advantage of, bypassing, exploiting, defeating, disabling, or otherwise circumventing limitations of the Services, security mechanisms, or compliance with this Agreement or any law.
xxii. Intercepting, capturing, sniffing, monitoring, modifying, emulating, decrypting, or redirecting any communication or data for any purpose.
xxiii. Posting to any usenet or other newsgroups, listservs, forums, e-mailing lists or other similar groups or lists articles which are off-topic according to the charter of other owner-published FAQs, rules, or policies or description of the group lists;
xxiv. Falsifying user information provided by CommandLink Parties or other users of the Services;
xxv. Engaging in any of the foregoing activities by using the services of another provider, but channeling such activities through an account provided by CommandLink, re-mailer, or otherwise through the Services or using an account provided by CommandLink as a mail drop for responses or otherwise using the services of another provider for the purpose of facilitating the foregoing activities if such use of another party's service could reasonably be expected to adversely affect CommandLink or its suppliers; or
xxvi. Operating a server in connection with the Services in an open relay configuration (a configuration whereby a mail server processes email messages where neither the sender nor the recipient is a local user). Servers configured in this manner expose both CommandLink's network and other users of the network personal account to fraudulent and abusive use by third parties. Customer hereby acknowledges and agrees that it will not operate servers within an open relay configuration. If Customer requires assistance in determining the configuration of the Customer's server and/or instructions to secure a server, Customer may contact CommandLink.
b. Interfering With Other Users. No Customer shall interfere with any other person's use of the Services or the Internet, including, without limiting the foregoing, by effecting or participating in any of the following activities via the Services:
i. Restricting or inhibiting any other user or any other person from using or enjoying the Services and/or the Internet;
ii. Posting or transmitting any information or software that contains a virus, worm, cancelbot or other harmful component;
iii. Without permission from the owner of a system or network, doing any of the following:
1. accessing the system or network;
2. monitoring data or traffic;
3. probing, scanning, or testing firewalls;
4. testing the vulnerability of a system or network; or
5. breaching the security or authentication routines or a system or network;
iv. Relaying e-mail in an anonymous fashion or forging any transmission control protocol/internet protocol ("TCP-IP") packet header(s); or
v. Mailbombing, flooding, overloading, attacking or otherwise interfering with a system or network.
c. High Risk Use Prohibited. THE SERVICES ARE NOT DESIGNED, MANUFACTURED, INTENDED, OR RECOMMENDED FOR USE FOR ANY HIGH-RISK OR FAIL-SAFE PURPOSE OR ACTIVITY OR IN ANY ENVIRONMENT WHERE FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY COULD RESULT IN SUBSTANTIAL LIABILITY OR DAMAGES, PHYSICAL HARM OR PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR PROPERTY OR ENVIRONMENTAL DAMAGE. CUSTOMER SHALL NOT USE THE SERVICES FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT AND AGREES TO INDEMNIFY, DEFEND, AND HOLD COMMANDLINK PARTIES HARMLESS FROM ANY CLAIM, LIABILITY, COST, LOSS, OR EXPENSE BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO OR ARISING FROM ANY BREACH OR VIOLATION OF THE FOREGOING COVENANT INCLUDING IN THE EVENT OF FAILURE, INTERRUPTION, SUSPENSION, TERMINATION OR OUTAGE OF CUSTOMER'S SERVICES AND/OR INABILITY TO DIAL 911 USING THE SERVICES OR TO ACCESS EMERGENCY SERVICE PERSONNEL OR BE LOCATED BY SUCH PERSONNEL
d. Abuse and Threats. Any abuse, threats, harassment, profanity, or vulgarities, including sexual harassment, made to or directed at CommandLink Parties or their vendor's or supplier's personnel is grounds for termination of this Agreement or cancellation or suspension of any Services for cause.
e. Damage to Equipment. Any use or activity that results in the destruction, malfunction, harm, or loss of or damage to any equipment, hardware, or products provided to Customer as part of or related to the Services.
f. Voice Services. Voice Services, including the use of long-distance services, shall be limited to normal business usage in CommandLink's sole discretion. Unreasonable or excessive use of Voice Services, e.g., auto dialing, hot desking, etc. is prohibited.
g. Remedies. CommandLink may act immediately and without notice to suspend or terminate the Services or remove any Customer information or content from CommandLink's servers, in whole or in part if, in CommandLink's sole discretion, Customer's use of the Services or Customer's information or content violates these acceptable use requirements. Violation of the foregoing provisions may result in civil or criminal liability, and CommandLink may, in addition to any remedy that it may have at law or in equity or under this Agreement, immediately suspend or terminate permission for the Customer to use the Services without notice and charge Customer any applicable Termination Fee. In addition, CommandLink may investigate incidents that are contrary to this Agreement and provide requested information to third parties who have provided notice to CommandLink stating that they have been harmed by Customer's failure to abide by this Agreement.
21. Service Fees. The following is a summary of services fees that may apply to the Services. The following fees are subject to amendment at any time in CommandLink's sole and absolute discretion:
a. High Availability ("HA") In-Term Engineering Fee. For adding HA to any specific Location(s) while the SDWAN|Link, SASE|Link, or Security|Link products are within a service term, a $500.00 engineering fee will apply as this constitutes a redesign process, which is not included in the Service fees.
b. Change of Account Ownership Fee. $500.00 will be charged to Customer when requesting to assign its account to another entity pursuant to Section 28(j) (Assignment) of this Agreement.
c. Move Fee. For moving any Services from one Location to another Location, $500.00 shall be charged to Customer per type of Service as an NRC to cover costs of project management and design engineering. Professional installation, decommissioning field services, and other fees may also apply.
d. Dispatch Fee. When a Service Tech is dispatched during standard business hours (i) to address a Trouble Ticket or any other issue not directly caused by CommandLink (a "Customer Issue"), or (ii) to perform a Customer requested installation or other elective Professional Service, Customer shall incur a minimum "Dispatch Fee" equal to (i) $425.00 for the first two (2) hours of labor expended by the Service Tech dispatched in the United States, and (ii) $750.00 for the first two (2) hours of labor expended by the Service Tech dispatched in other jurisdictions. Thereafter, $175.00 in the United States, or $350.00 in other jurisdictions, shall be charged for each whole or partial one (1) hour increment a Service Tech is addressing a Trouble Ticket or other Customer Issue. Pricing in jurisdictions outside the United States may be greater than set forth above and is subject to local prices available in the applicable jurisdiction at the time, which CommandLink can estimate upon written request. Dispatch of a Service Tech outside of standard business hours, including during weekends or holidays, will incur a variable premium Dispatch Fee greater than the hourly rates set forth above; for example, the premium Dispatch Fee will apply for afterhours Service turn up or installation requested by Customer. Further and notwithstanding anything set forth herein, in CommandLink's sole discretion, if any dispatch requires a customized scope of work or involves complex tasks, there may be additional charges.
e. Engineer Consultation or Professional Services Fee. Engineering consulting services or other Professional Services performed by CommandLink Parties that are outside normal service management and support for the Services set forth in Section 2, including professional, engineering or consulting services for route switching, security, compliance, network design, redesign or rebuilding work, re-configuration work, training, etc., shall be subject to an "Engineering Consulting Fee" or "Professional Services Fee" at an hourly rate of a minimum of $300.00 as agreed in the applicable customized scope of work or Order Form to be negotiated by CommandLink and Customer in writing for such additional Services. See Section 8(e) above for additional terms and conditions applicable to Professional Services.
f. Separate Account Billing. For Customers that request separate billing accounts or separate or individual invoices per account or location, CommandLink reserves the right to charge an additional $25.00 per separate invoice or account.
g. Inside Wiring Fee. Rates and costs for installation, moving, configuration, or other work related to indoor wiring necessary to accommodate the Services will be quoted separately and is the responsibility of Customer. A site review for purposes of evaluating existing indoor wiring shall be billed as a Dispatch Fee.
h. Missed Appointment/No Access Fee. $425.00 plus a minimum Dispatch Fee shall be charged if Customer does not keep a scheduled appointment for any reason (e.g., no one over the age of eighteen (18) is present at the applicable Location for a scheduled Service Tech visit) without providing CommandLink with at least forty-eight (48) hours advance written notice or a Service Tech is denied access to a network interface device.
i. Payment Fees; Returned Payments. $25.00 will be charged as a manual check handling and processing fee for any payment made by check, and a card processing fee will be charged for any payment made by card at the applicable rate in effect at the time of processing. $50.00 will be charged as a returned payment handling and processing fee for any payment being returned or rejected by Customer's financial institution or card issuer.
j. Minimum Invoice Fee. $50.00 will be added to any invoice of less than $120.00.
k. Special Installation, Construction or Access Fees. To-be-determined "Special Installation, Construction or Access Fees" shall be charged for work required to accommodate special and/or nonstandard Service installations, construction or access and shall be determined on a case-by-case basis by CommandLink and Customer in a separate scope of work or Order Form.
22. Notices and Contacts. Notices to Customers may be sent to the email address or address listed on the Order Form or as otherwise provided by Customer in writing. Customer authorizes and consents to CommandLink Parties, outside outside counsel or agencies or other parties acting on behalf of CommandLink to contact Customer by any means or methods, including electronic means such as the CommandLink Platform, regarding the Services, including in connection with any past due charges or fees for such Services. Customer authorizes CommandLink Parties to obtain any Customer credit information or proprietary network information necessary for provision of the Services and to establish a CommandLink account; Customer authorizes release of such information by any third parties to CommandLink. Customer agrees to provide accurate, current and complete contact information to CommandLink Parties and to promptly update Customer's contact information upon any change in such information. Customer represents and warrants that all information Customer has provided to CommandLink Parties in connection with the Service is true, accurate, current and complete. Notices to CommandLink must be sent to:
CommandLink, LLC
PO Box 4085
Portsmouth, NH 03802
With a Copy to: billing@commandlink.com & [email protected]
And
Keating & Lyden, LLC
5377 Manhattan Circle, Suite 203
Boulder, CO 80303
23. Non-Solicitation. Each party agrees during the term of this Agreement and for a period of twelve (12) months thereafter, it will not solicit for hire the agents, contractors, or employees of the other, without the written consent of the other party. Employees or agents hired in response to general employment solicitations advertised in the usual and customary manner by either party shall be excluded from this provision.
24. Confidentiality. Each party acknowledges that the other party may provide proprietary and confidential information of such party and its vendors and suppliers in connection with the Services and this Agreement and that the Services and this Agreement contain or include such proprietary and confidential information. CommandLink maintains policies relating to Customer Proprietary Network Information ("CPNI") and uses telecommunications provider industry-accepted technologies to safeguard such information. CPNI includes information that relates to the quantity, technical configuration, type, destination, location, and usage of regulated telecommunication Services. Under federal law, applicable customers have the right, and CommandLink has the duty, to protect the confidentiality of CPNI. Subject to, and except as set forth in, this Agreement including without limitation Section 25 below, each party agrees during the term of this Agreement and for a period of twelve (12) months thereafter, to keep confidential and not to disclose this Agreement, the Services, or any proprietary and confidential information of the disclosing party, to third parties without the prior written consent of the disclosing party. Confidential information of a party shall not include any information that: (i) is independently developed by the receiving party without use of the disclosing party's proprietary and confidential information; (ii) is lawfully in the possession of or received by the receiving party free of any obligation to keep it confidential; or (iii) becomes generally available to the public other than by breach of this Agreement. If the receiving party is required or requested by an order or a court or other government entity to disclose any confidential information, it will promptly notify the disclosing party, to the extent allowed by applicable law, so that the disclosing party may seek a protective order or take other appropriate action, at the sole cost and expense of the disclosing party. Upon termination of this Agreement for any reason, except as required by applicable law, the receiving party shall return all proprietary and confidential information of the disclosing party, including all copies, extracts, and summaries thereof, to the disclosing party; or destroy all such proprietary and confidential information in a secure manner and provide written certification of such destruction.
25. Privacy and Security. The following policies and procedures address privacy and security with respect to CommandLink Services. For more information about CommandLink's privacy processes, practices and policies, see CommandLink's Privacy Policy posted on CommandLink's website, https://www.commandlink.com/privacy-policy/, which Policy is referenced and incorporated herein as if fully set forth herein.
a. Customer Data and Use of Services. CommandLink shall take commercially reasonable precautions, including technical (e.g., firewalls and data encryption), administrative and physical measures, to help safeguard Customer Data transmitted over CommandLink networks against unauthorized use, disclosure, or modification. Customer shall protect all Services and Customer Data transmitted over networks subject to the Services using commercially reasonable security measures consistent with industry-standards, but in no case shall such measures be less protective than the measures used by Customer to protect its other Customer Data. Customer is solely responsible for keeping all user identifications, passwords, and other Access Credentials secure and confidential and for all use of the Services. Customer shall monitor use of the Services for possible unlawful or fraudulent use. Customer shall notify CommandLink immediately if Customer becomes aware or has reason to believe that the Services are being used in breach of this Agreement, fraudulently, or without authorization by any person, end user or third party. Failure to so notify CommandLink may result in the suspension or termination of the Services and additional charges to Customer resulting from such use.
b. Collection and Use of Information; Privacy. CommandLink collects, has or obtains data and information, including personal information and usage data, about customers and other users of its Services and uses such information to provide, improve and develop its Services, including to offer additional, enhanced or new products, technology, and service offerings from CommandLink Parties via email, cellphone or otherwise. CommandLink takes reasonable measures to protect the personal information it has regarding customers. Notwithstanding anything set forth herein, CommandLink may share such information internally and with third parties to provide, improve or develop the Services, to fulfill its legal or contractual obligations, or to comply with applicable law. CommandLink also uses Customer information generated on its networks, personal information, and usage data to manage those networks, to plan for future development, and to keep its Services running reliably and efficiently, including to monitor data to check for viruses, to help control spam, to help prevent attacks that might disable its Services, to ensure that a customer's traffic does not violate a customer's Master Service Agreement or related agreements, and to help guard against other inappropriate or illegal activity, which may include reviewing the characteristics of network traffic, such as traffic volumes, beginning and ending points of transmissions, and the types of applications being used to send traffic across its network. In certain circumstances, CommandLink Parties may need to review the content of the data (such as the specific websites being visited, files being transmitted, or application being used) for the purposes described above, including in circumstances when CommandLink is concerned about fraud or harassment, to repair a problem CommandLink detects or that a customer contacts CommandLink about, or when CommandLink is required or requested to provide the content of broadband traffic or the network to law enforcement or private parties via legal subpoenas or exigent circumstances. CommandLink may occasionally hire other companies to provide services on its behalf, including for Service delivery and support, packaging, mailing and delivering purchases, answering customer questions about products or services, sending mail, or other services. CommandLink will only provide these companies referenced in the preceding sentence with the information they need to deliver those services, and CommandLink's contracts with such companies contain confidentiality protections. Other than what is described herein or otherwise permitted under this Agreement, CommandLink does not sell, trade or rent Customer personal information or Service-related data to others. When disclosing any personal information, Customers should remain mindful of the fact that it is potentially accessible to the public, and consequently, can be collected and used by others without the Customer's consent. CommandLink has no responsibility or liability for any lack of privacy that may be experienced with regard to the Services or for the security of Customer Data or other information transmitted via the Internet, and each party is responsible for complying with the privacy laws applicable to its own business. If Customer does not want others to comprehend Customer Data, Customer must encrypt such data so that it will be unintelligible and/or otherwise employ appropriate Customer technical and organizational measures to protect its confidentiality and integrity.
c. Data Controller Status for Service-Related Data. CommandLink acts as an independent data controller (within the meaning of the EU General Data Protection Regulation (Regulation (EU) 2016/679), the UK GDPR, and other applicable data protection laws), and as an independent business (as defined under U.S. state privacy laws, including the California Consumer Privacy Act of 2018 as amended by the California Privacy Rights Act (CCPA/CPRA)), with respect to Service-related data generated, collected, or otherwise processed by CommandLink in connection with the provision, operation, security, support, optimization, billing, or monitoring of the Services as described herein. This includes, but is not limited to, business contact information of personnel (e.g., for technical support, billing, or account management); Service configuration data and network identifiers (e.g., IP addresses, MAC addresses, device IDs); traffic metadata and usage records; and geolocation data. CommandLink independently determines the purposes and means of processing such Service-related data and does not process such data on behalf of Customer. Accordingly, CommandLink shall not be deemed a data processor, service provider, or contractor with respect to Service-related data under any applicable data protection law, and unless non-Service related personal data is specifically requested by CommandLink, Customer is not authorized to provide other personal data to CommandLink. Occasional or inadvertent access to non-Service related personal data that CommandLink does not process for the controller of such data does not result in CommandLink acting as the processor, service provider or contractor under applicable law for such personal data. The data controller designation does not apply to Customer Data for which CommandLink acts as a mere conduit and does not determine the purposes or means of processing such data. When providing solely internet connectivity for Customer data transmission, neither CommandLink nor any applicable internet service provider or other third-party infrastructure provider is the controller, service provider or processor under applicable law for such Customer Data transmitted, collected, downloaded, or otherwise received directly or indirectly by Customer when using connectivity Services.
d. Consent; Messaging Terms and Conditions. Personally identifiable information that CommandLink collects including name, address, email, or mobile phone number is only used as described herein to conduct business with Customer, provide the Services requested, and keep in communication regarding ongoing and enhanced services. If Customer provides an email or mobile phone number that is necessary for provision of the Service, Customer expressly consents to contact by mobile phone, text, SMS and/or email alerts as part of receiving such Service. Further, CommandLink may use such personal information and certain CPNI (e.g., rate plan information) regarding Customer's account and the Services to alert Customer to offers of additional services, products or offers that may be of benefit. Acceptance of this Agreement constitutes consent to use such personal information and CPNI to inform Customer of additional or new products, technology, and service offerings by CommandLink, including via email, mobile phone or otherwise. Customer has the right to withhold authorization of additional CPNI use without affecting the provision of any current Services, and accordingly, such authorization is effective until revoked by Customer email to [email protected]. Customer authorizes CommandLink monitoring and recording of calls concerning Customer's account or CommandLink services, and Customer consents to CommandLink use of automatic dialing equipment and/or pre-recorded messaging to contact Customer. Customer agrees to receive informational messages (appointment reminders, account notifications, etc.) from CommandLink. Message frequency varies, and message and data rates may apply. For help, reply HELP to any such message, or call CommandLink at 855-270-5465. Customer may also opt out of messaging at any time by replying STOP to any such message. This mobile information sharing with respect to messaging excludes any mobile originator information, opt-in records and consent documentation for SMS/text message communications, which data is not disclosed to or processed by any third party, in accordance with applicable telecommunications and privacy laws.
26. Service Level Agreement; Security Services Agreement.
a. Service Level Agreement. The parties agree to abide by and be subject to CommandLink's applicable Service Level Agreement ("SLA") for the Services, which shall be incorporated herein and made part of this Agreement by reference. Based on the terms thereof, Customer may be eligible for specific reductions in future MRC owed by Customer ("Service Credits").
b. Security Services Agreement. For any CommandLink Security Services (as defined in Section 2(d)), the parties agree to abide by and be subject to CommandLink's Security Services Agreement posted on CommandLink's website at https://www.commandlink.com/security-services-agreement/, including its applicable Security Services SLA, which shall be incorporated herein and made part of this Agreement by reference.
27. Voice Services Details.
a. Charges. Customer is responsible for paying all charges to Customer's account for the Voice Services, including long distance, international tolling and directory assistance charges, and any costs and charges arising from fraud, unauthorized or illegal use or activities, hacking or access of or by third parties, and for all Taxes imposed on Customer or CommandLink Parties as a result of Customer's use of the Voice Services. Long distance usage on each call is as otherwise stated by Customer's plan. Toll free 800/888/877 numbers are charged on the in-bound call only. Calls originating from Canada, Hawaii, Alaska, Puerto Rico, the U.S. Virgin Islands or other nearby island groups will have special, higher, per minute rates that will vary by each of these regions normal business usage.
b. Voice Security. Customer understands that the use of the Voice Services requires passage through Customer's network firewall. This may introduce exploitable security weaknesses. Those Customers especially concerned about their security are advised to deploy firewalls specifically designed to enhance security for Voice Services. Customer shall defend, indemnify and hold harmless CommandLink Parties from and against all liabilities, obligations, claims, demands, costs and expenses, including reasonable attorneys' and experts' fees, incurred, suffered or imposed upon CommandLink Parties that relate to or arise from such security weaknesses.
c. Fax Machine. If Customer's business requires the use of facsimile machine(s) (fax machines) Customer should be aware that fax transmission over VoIP is not considered the best technical solution, particularly for use cases involving high volume and/or high page count faxing. VoIP-based faxing may result in transmission errors, incomplete pages, or reduced reliability due to packet-based voice protocols not being optimized for fax data.
d. Ownership and Transfer of Telephone Number. In the event that Customer ported a telephone number, either local or toll-free, from a previous service provider or carrier to CommandLink, then Customer will retain ownership of that telephone number. Provided, however, Customer understands and agrees that Customer is not the owner of any telephone number assigned to Customer by CommandLink. Ownership of any such phone number is vested solely in CommandLink or others (who will assign or re-assign such numbers to Customer for its use during the term of this Agreement). Customer understands and agrees that: (a) CommandLink may from time to time need to change the number assigned to Customer (due to an area code split or for any other reason outside of CommandLink's control); and (b) following the termination of Customer's CommandLink account for any reason, Customer will no longer have access to such number. In either case, such phone number maybe re-assigned immediately to another person or entity and Customer agrees that CommandLink Parties will not be liable for damages (including consequential or special damages) arising out of any such re-assignment and Customer hereby waives any claims with respect to any such re-assignment, whether based on contract, tort or other grounds, even if CommandLink Parties have been advised of the possibility of damages. In the event that the telephone number assigned to Customer by CommandLink is a toll-free number and the Services associated with that number are being terminated, then CommandLink will, upon Customer's written request, allow Customer to move that toll-free number from CommandLink to an alternate toll-free carrier, provided that: (i) the termination of Service is not due to a default by Customer; and (ii) all fees and charges for the Services, whether or not then due, have been paid in full. In the event the Service associated with that telephone number is being terminated, CommandLink will, upon Customer's written request, allow Customer to move that local or toll-free number from CommandLink to an alternate carrier, only if: (x) the termination of the Service is not due to a default by Customer or for cause; and (y) all fees and charges for the Services, whether or not then due, have been paid in full by the Customer.
e. Disclaimer of Emergency 911 Services. CommandLink is subject to a Federal Communications Commission ("FCC") requirement to provide notification of any Enhanced 911 ("E911") limitations that may be associated with the Voice Services provided to Customer. As is the case with E911 service provided by a traditional telephone service provider, Customer is advised that the E911 service provided by CommandLink: (1) may not function with the loss of electrical power, including the loss of power to telephone equipment or other equipment necessary to route E911 calls to the appropriate emergency call center; (2) will not function if the network connection is not operational; (3) will not function at a remote location or may transmit incorrect physical location information for the caller if internal users are allowed to use their IP-based phones remotely; (4) will not function if the telephone equipment or other equipment necessary to place calls is not correctly configured; (5) may not transmit the correct physical address for the E911 call due to incorrect information provided by Customer, use of a non-native telephone number or delays in loading or updating automatic number identification and location information into the E911 databases; (6) may not be capable of being received and/or processed by an emergency call center due to the center's technical limitations; and (7) may be affected by other factors or Force Majeure Events, such as the quality of the broadband connection and network congestion. Customer's execution of the CommandLink Order Form or this Agreement or any use of the Services will serve as Customer's acknowledgement that CommandLink has advised Customer of these potential E911 limitations. The physical location that Customer provided to CommandLink prior to the initiation of Service and at which our Service is first used by Customer, shall be the registered location that will be provided to the emergency call center when Customer places a 911 call. CUSTOMER HEREBY ACKNOWLEDGES THAT COMMANDLINK RECOMMENDS THAT A PLAIN OLD TELEPHONE SERVICE ("POTS") LINE BE AVAILABLE AS A BACK-UP FOR 911 CALLING IN EACH PHONE SYSTEM LOCATION. CUSTOMER FURTHER ACKNOWLEDGES AND UNDERSTANDS THAT COMMANDLINK WILL NOT BE LIABLE FOR ANY SERVICE FAILURE, INTERRUPTION, SUSPENSION, TERMINATION OR OUTAGE AND/OR INABILITY TO DIAL 911 USING THE SERVICES OR TO ACCESS EMERGENCY SERVICE PERSONNEL OR BE LOCATED BY SUCH PERSONNEL DUE TO SUCH 911 SERVICE CHARACTERISTICS AND LIMITATIONS AND AGREES TO INFORM ALL EMPLOYEES, GUESTS AND OTHER THIRD PARTIES WHO MAY USE THE SERVICES OF THE LIMITATIONS ASSOCIATED WITH EMERGENCY CALLING CAPABILITIES. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ANY FEES, COSTS, LIABILTIES OR OTHER OBLIGATIONS ARISING FROM OR WITH RESPECT TO EFFORTS OR ACTIONS TAKEN BY COMMANDLINK, CUSTOMER, OR ANY THIRD PARTY TO COMPLY WITH RAY BAUM'S ACT, KARI'S LAW, OR SIMILAR LAWS RELATED TO E911 AND COMMANDLINK PARTIES SHALL NOT BE LIABLE FOR ANY LIABILITIES ARISING FROM OR RELATED TO THE FAILURE BY COMMANDLINK, CUSTOMER, OR ANY THIRD PARTY TO COMPLY WITH SUCH LAWS.
28. Other Terms and Conditions.
a. Affiliates. Any affiliate or subsidiary of Customer purchasing Services under this Agreement or using or accessing any Services or otherwise benefitting from the Customer's use of the Services (collectively, "Affiliate"), shall be bound by and comply with all terms and conditions of this Agreement.
b. Organization; Authority. Each party represents that it is duly organized, validly existing and in good standing as a corporation, limited liability company or other entity under the laws of the jurisdiction of its incorporation or other organization. Each party and the signatory of each party under this Agreement and any Order Form represents that they have and possess the full legal right, power, authority and ability to enter into the applicable Order Form and this Agreement.
c. Force Majeure. Except for payment by Customer of any amounts payable under this Agreement unless such event also results in the closure of banking institutions necessary to process such payment, neither party shall be responsible for any failure to perform due to unforeseen circumstances or to causes beyond such party's reasonable control, including, acts of god, changes in governmental laws, rules, regulations or orders, war, terrorist acts, insurrection, disease, riot, embargoes, acts of civil or military authorities, geopolitical events, shipping or import delays, fire, floods, explosions, accidents, strikes, power outages or shortages or interruption in transportation, facilities, fuel, energy, labor or materials (collectively, a "Force Majeure Event").
d. Waiver. Failure on the part of any party to complain of any action or non-action of the other party shall not be deemed to be a waiver of any rights under this Agreement. No waiver of any of the provisions of this Agreement shall be deemed to be a waiver of other provisions of this Agreement, and a waiver at any time of the provisions of this Agreement shall not be construed as a waiver at any subsequent time of the same provisions.
e. Entire Agreement; Amendment or Modification. This Agreement and Order Forms hereunder set forth all of the promises, covenants, agreements, conditions and undertakings between the parties with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements and undertakings, inducements or conditions, express or implied, oral or written. Subject to Section 12 for Order Form MRCs, CommandLink may amend or modify this Agreement or any other agreement incorporated herein, including, without limitation, the SLA, from time to time without notice by posting a copy of the modified or amended Agreement or other agreement at https://www.commandlink.com/terms-of-service, and Customer shall be bound by and be responsible for compliance with the current version of this Agreement or other agreements.
f. Counsel. The parties hereby expressly acknowledge that each party has been given the opportunity to consult with separate legal counsel for advice on this matter. Customer understands and agrees that CommandLink does not provide legal or regulatory advice or services of any kind or nature whatsoever, and Customer is responsible for retaining its own legal/regulatory counsel and advisors to provide any such advice or services. Further, any work, service and/or deliverables provided by CommandLink in connection with any Service shall not be deemed to be legal or regulatory opinions and may not and should not be relied upon as advice, proof, evidence, guaranty or assurance as to Customer's legal or regulatory compliance.
g. Counterparts; Electronic Signature. This Agreement and any Order Form may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. This Agreement may be signed with an electronic signature, including via DocuSign or other electronic signature verification software, which electronic signature shall have the same effect as if signed with a handwritten signature.
h. Severability. If any term or provision or part of a term or provision of this Agreement is or becomes invalid, illegal, void or unenforceable for any reason, the remainder of the terms and provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall enter into good faith negotiations and use their best efforts to (and if the parties cannot agree then a court shall) amend the Agreement or employ an alternative means to achieve the equivalent result, including the equivalent economic result, to the maximum extent allowed under applicable law, as that contemplated by such invalid, illegal, void or unenforceable term or provision.
i. Independent Contractor Relationship. The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint venturers, employees or agents.
j. Assignment. Customer may not assign this Agreement without the prior written consent of CommandLink. CommandLink may assign this Agreement or subcontract its duties under this Agreement to third parties in its sole discretion.
k. Binding Effect. This Agreement shall be binding upon the parties, their applicable Affiliates, successors and assigns.
l. Third Party Beneficiaries. This Agreement is intended solely for the benefit of Customer and CommandLink Parties and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
m. Interpretation. The headings used in this Agreement are for convenience only and shall not be used to limit or construe the contents of any of the sections of this Agreement. The word "including" or any variation thereof means "including, without limitation" and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. Words such as "herein," "hereinafter," "hereof," "hereunder" and "hereto" refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. Any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa. Reference to a day shall be deemed to refer to a calendar day and any reference to a month, quarter or year shall be construed by reference to the Gregorian calendar. The parties agree that this Agreement shall not be construed against any party on the basis that such party was the drafter, and any rule of construction to the contrary is hereby waived.
n. Resolution of Disputes; Arbitration. PLEASE READ THIS SECTION CAREFULLY. IT PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION INSTEAD OF IN A COURT BY A JUDGE OR JURY OR THROUGH A CLASS ACTION; PROVIDED HOWEVER, THAT COMMANDLINK MAY INITIATE COLLECTIONS ACTIONS AGAINST CUSTOMER IN COURT WITHOUT ARBITRATION. ARBITRATION IS FINAL AND BINDING AND SUBJECT TO ONLY VERY LIMITED REVIEW BY A COURT. Except for CommandLink collections suits which are not subject to the following arbitration provisions, before the initiation of any arbitration between the parties, written notice of any claim, dispute or other difference (collectively, "Disputes") shall be provided pursuant to the Notice provisions of the Agreement set forth above. If the Dispute cannot be resolved pursuant to this pre-arbitration process within sixty (60) days of receipt of such notice, either party may initiate arbitration of the Dispute as follows. Disputes that arise between the parties, except for those Disputes that fall exclusively within the jurisdiction of a state or federal regulatory body, shall be exclusively resolved by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association with arbitration to occur in King County, Washington. The parties agree that their Disputes will be resolved individually and shall not be resolved on a consolidated or class basis or joined with Disputes of any third party. Subject to the disclaimers and limitations of liability set forth in this Agreement, the arbitrator(s) may award declaratory relief, preliminary and permanent injunctive relief, and direct compensatory damages, but may not award any incidental, consequential, punitive or other damages disclaimed herein and each party waives, to the fullest extent permitted by law, any claims for any such damages. To the extent such damages may not be so waived, if an arbitrator decides to award such damages they shall be limited to the total amount of Service charges paid by Customer to CommandLink in connection with the individual Service(s) that is the subject of the Dispute.
o. Choice of Law; Waiver of Trial by Jury; Venue. This Agreement shall be deemed to have been made in and shall be construed and governed by the laws of the State of Washington and the United States of America without regard to conflict of law principles thereof and the exclusive venue for any dispute, action, claim or proceeding arising under or related to this Agreement or the Services shall be in the state and federal courts located in King County, Washington. The parties unconditionally and irrevocably consent to the jurisdiction of any such court in any suit, action, claim or proceeding, agree to bring such actions only in such courts, and waive to the fullest extent permitted by applicable law any objection that it may have, including inconvenience of forum, to the laying of venue in such courts. CUSTOMER AND COMMANDLINK AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY AND TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT WITH RESPECT TO ANY DISPUTE BETWEEN THE PARTIES OR ARISING UNDER THIS AGREEMENT OR WITH RESPECT TO THE SERVICES.
p. Survival. Obligations and rights in connection with this Agreement, which by their nature would continue beyond the termination, cancelation, or expiration of this Agreement, will survive the termination, cancelation, or expiration of the Agreement, including those in the following sections: 10 (Fees and Payments), 11 (Payment Terms and Delinquent Payments) 13 (Billing Disputes), 14 (Taxes), 15 (Term and Termination), 16 (Termination Fees), 17 (Disclaimers), 18 (Limitation on Liability), 19 (Intellectual Property; Reservation of Rights), 20 (Acceptable Use Requirements), 22 (Notices and Contacts), 23 (Non-Solicitation), 24 (Confidentiality), 25 (Privacy and Security), 26 (Service Level Agreement); 27 (Voice Service Details); and 28 (Other Terms and Conditions).
SERVICE LEVEL AGREEMENT
The provision of Services by CommandLink, LLC ("CommandLink") is subject to the terms and conditions set forth in the following Service Level Agreement ("SLA"), except for the provision of Security Services (MDR, NDR, XDR) which fall under the Service Level Agreement for Security Services. This SLA sets forth the performance goals for the Services ("Service Levels"), and the parties' obligations with respect to the same. This SLA is attached to and incorporated into the Master Service Agreement ("MSA") between CommandLink, LLC and Customer. Notwithstanding anything to the contrary in the MSA, the headings used in this SLA form an integral part hereof necessary for construing the contents of such sections of this SLA. Customer agrees to abide by and be subject to the terms and conditions set forth in this SLA as well as the Order Form and MSA. Based on the terms hereof, Customer may be eligible for specific reductions in future MRCs owed by Customer ("Service Credits") or other action as set forth in this SLA. Any capitalized terms not defined herein shall have the meaning set forth in the MSA or the Order Form.
1. Definitions.
a. "Chronic Service Issue" means one (1) identical issue that results in the issuance of Service Credits to Customer under this SLA.
b. "Network Latency" means the average network transit delay, measured via roundtrip pings on an ongoing basis to determine a consistent average monthly performance level for Latency at all the points of presence ("POPs").
c. "Network Outage" exists when a Customer's SDWAN or Dedicated Network-as-a-Service is completely unable to transmit and receive data at a Customer's physical business location due to a loss of network connectivity. A Network Outage is measured from the time a Trouble Ticket is opened due to the Network Outage to the time Customer's SDWAN or Dedicated Network-as-a-Service is again able to transmit and receive data.
d. "Network Packet Delivery" refers to the successful delivery of units of data carried over a network.
e. "Physical business location" means a Customer Service location that is a commercially zoned, non-residential business establishment (such as a corporate office or warehouse) where Customer conducts core operations or engages with customers, suppliers, or employees. Any residential or remote work location, including but not limited to home offices, is expressly excluded from this definition, regardless of Customer's business model or remote or work-from-home policies.
f. "Platform Outage" exists when CommandLink Customers are unable to access the CommandLink Platform due to circumstances within CommandLink control.
g. "Voice Outage" exists when a Customer's Voice Services are unable to accept or make phone calls because the CommandLink voice network core is unavailable.
2. SDWAN Network Outage. For each cumulative one (1) hour period where Customer experiences a Network Outage, Customer shall be eligible to receive a Service Credit equal to 1/720th of the affected Service's MRC. No Service Credit shall be available for any Network Outage lasting less than one (1) cumulative hour or any partial hour. To be eligible for a Service Credit due to a Network Outage lasting longer than one (1) cumulative hour for SDWAN Services:
a. Customer must purchase SDWAN|Link with at least one dedicated Bandwidth|Link or MPLS|Link connection from CommandLink; and
b. Customer must have at least a second network connection, which can be Customer or CommandLink provided network connection, subject to CommandLink's sole and absolute discretion that there is true diversity between the primary network connection and the secondary network connection.
3. Dedicated Internet Access ("DIA") Uptime. Effective as of the first day of the second month after initial Installation of any DIA Service, for each cumulative one (1) hour period where Customer experiences a Network Outage, Customer shall be eligible to receive a Service Credit equal to 1/720th of the affected Service's MRC. No Service Credit shall be available for any Network Outage lasting less than one (1) cumulative hour or any partial hour. In order to qualify for this Service Credit:
a. Customer must purchase at least one dedicated Bandwidth|Link or MPLS|Link connection from CommandLink;
b. Customer must have at least a second network connection, which can be Customer or CommandLink provided network connection, subject to CommandLink's sole and absolute discretion that there is true diversity between the primary network connection and the secondary network connection; and
c. Customer is responsible for reporting any suspected network availability problems to CommandLink within twenty-four (24) hours from the time Customer became aware of the problem through the submission of a Trouble Ticket to CommandLink.
4. DIA Network Latency. Network Latency for Service Credit purposes is calculated on a monthly basis, and if monthly average Network Latency exceeds fifty (50) milliseconds (ms) for any calendar month in the region between the relevant backbone nodes (the "Network Latency Goals"), Customer shall receive a future Service Credit equal to ten percent (10%) of the MRC for the affected service that exceeded the Network Latency Goals.
5. DIA Network Packet Delivery. Packet delivery is measured for Service Credit purposes to calculate a consistent average monthly performance level for data actually delivered between backbone nodes. If average monthly Network Packet Delivery is below 99.99% ("Packet Goal") for any calendar month, Customer shall be eligible to receive a Service Credit equal to ten percent (10%) of the MRC for the affected Service that did not meet the Packet Goal.
6. Chronic Service Issue. If a Chronic Service Issue occurs at least three (3) times or more during any calendar month for a particular Service at any single Location, and the third Chronic Service Issue for that Service has not been resolved to the reasonable satisfaction of Customer within five (5) business days of Customer notifying CommandLink of such Chronic Service Issue, CommandLink shall provide Customer with a remediation plan as to how it will correct the Chronic Service Issue within thirty (30) business days following such notice by Customer that the third attempt to address the Chronic Service Issue was inadequate (the "Remediation Period"). If CommandLink is unable to correct the Chronic Service Issue for that Service to the reasonable satisfaction of Customer by the expiration of the Remediation Period, Customer shall have the option of terminating the impacted Service(s) for the Location experiencing the Chronic Service Issue without penalty, including the payment of any early Termination Fee.
7. Voice Outage. For each cumulative one (1) hour period where a Customer experiences a Voice Outage, Customer will be qualified to receive a Service Credit equal to 1/720th of the affected Service's MRC. No Service Credit shall be available for any Voice Outage lasting less than one (1) cumulative hour or any partial hour.
8. Command|Link Platform Uptime. In any month where there is at least one (1) cumulative one (1) hour period of Platform Outage, Customer will be qualified to receive a Service Credit equal to $100.00. No Service Credit shall be available for any Platform Outage lasting less than one (1) cumulative hour or any partial hour.
9. Simple Configuration Changes. Non-urgent, simple configuration requests for security or routing changes will be reviewed by CommandLink upon Customer submitting a Trouble Ticket to CommandLink (a "Configuration Change Notice"). CommandLink will endeavor to complete the configuration change within one (1) business hour of receiving a Configuration Change Notice (the "Configuration Goal"). Provided, however, many configuration changes require a design review process or update of Visio diagrams, modification of Customer's approved technical documents, and/or discussions around how it could impact other applications/services and such changes shall not be subject to the Configuration Goal. Whether a configuration is simple or more detailed shall be determined in CommandLink's sole discretion. Volume of configuration change management requests that surpass normal industry average volumes may accrue additional charges.
10. Hardware and Equipment Replacement. CommandLink endeavors to replace hardware, equipment and CPE (collectively, "Replaced Equipment") by the end of the next business day for Locations within the United States ("Replaced Equipment Goal") after a Replaced Equipment Notice (defined below) is received. For Locations outside of the United States, the Replaced Equipment Goal may be longer based on shipping and fulfillment times or other matters related to the local jurisdiction. Customer shall notify CommandLink of the need for Replaced Equipment by submitting a Trouble Ticket to CommandLink (a "Replaced Equipment Notice"). If CPE must be replaced, CommandLink shall first identify, diagnose, and determine a replacement for the applicable CPE. Once determined, CommandLink shall endeavor to replace the affected CPE by the Replaced Equipment Goal. If replacement by the Replaced Equipment Goal is not possible, CommandLink will replace the Replaced Equipment within a commercially reasonable time.
11. High Availability Configuration. CommandLink highly recommends a high availability (HA) configuration, especially for any Location where Customer's business would be especially impacted by a Network Outage, Voice Outage or equipment failure.
12. Installation. Installation of Services varies based on the applicable technology employed and a host of other variables. Should CommandLink determine that construction, carpentry, electrical wiring, etc. (collectively, a "Build Out") is required to install a Service, Customer may elect to move forward with the installation and pay applicable construction costs for the Build Out, or the Customer can cancel the affected Service without penalty or obligation to CommandLink. Should the installation of a Service exceed the date set forth below as the "Installation Goal," Customer will be eligible to receive a Service Credit equal to ten percent (10%) of the affected Service's MRC:
Service Name | Service Type | Installation Goal |
MPLS|Link | Network-as-a-Service | Less than or equal to 90 days after Build Out |
Bandwidth|Link Dedicated, Ethernet, Fiber, MPLS/VPLS, Point-to-Point, Dark Fiber | Network-as-a-Service | Less than or equal to 90 days after Build Out |
Bandwidth|Link Wireless, 4G/5G/LTE | Network-as-a-Service | Less than or equal to 35 days after Build Out |
Bandwidth|Link Broadband - Cable, FTTx, Fixed Wireless | Network-as-a-Service | Less than or equal to 35 days, after Build Out |
SDWAN|Link | SDWAN | Less than or equal to 14 days* |
SASE|Link | SDWAN | Less than or equal to 14 days* |
Security|Link | SDWAN | Less than or equal to 14 days* |
UCaaS|Link | Voice Services | Less than or equal to 14 days, plus time required to port DID(s) |
CCaaS|Link | Voice Services | Less than or equal to 14 days, plus time required to port DID(s) |
SIP|Link | Voice Services | Less than or equal to 14 days, plus time required to port DID(s) |
*Large deployments (e.g., 50+ Locations) are subject to custom deployment plans and timelines based on the volume of Locations. | ||
13. SLA Claim Process. Customer must request a Service Credit within fifteen (15) days of the incident allegedly giving rise to a Service Credit or within fifteen (15) days of a Service being installed (for purposes of Installation Goals only) by emailing [email protected] (a "Service Credit Request"). A Service Credit Request must include the Customer's name, Location address, contact information, dates of incident, and background on the incident. CommandLink will review the Customer's claim and provide feedback or a response within fifteen (15) days of its receipt of the Service Credit Request. If Customer fails to provide a response to any CommandLink request for additional information regarding a claim for Service Credits within fifteen (15) days from Customer's receipt thereof, the claim will be denied. CommandLink will not accept late Service Credit Requests under any circumstance and any applicable Service Credits shall be null and void. A separate Service Credit Request must be submitted for each incident and each Location, unless the request is for the same Service and Location. Customer must also be current in all of its invoices to be eligible for Service Credits and may not withhold payments based on pending or disputed Service Credit Requests.
14. Service Credit Terms. The maximum Service Credit to be issued to Customer for any given calendar month shall not exceed fifty percent (50%) of the MRC for the affected Service. Service Credits must also be equal to or greater than twenty dollars ($20.00) to be processed.
15. Exclusive Remedy. CommandLink's issuance of Service Credits or other actions set forth in this SLA represents CommandLink Parties' sole liability and obligation to Customer, and Customer's sole and exclusive remedy against CommandLink Parties, for any Service issue, including the Service's non-performance, or failure to meet the Service Levels set forth herein. Any Service Credits issued by CommandLink under this SLA shall count toward the limitation of liability under the MSA.
16. Service Credit Ineligibility. Customer will not be entitled to Service Credits if an event was caused by, relating to or arising from any of the following:
a. Scheduled and/or emergency maintenance, service alteration, or implementation;
b. Failure of CPE or other third-party systems, equipment, applications or facilities not owned or controlled by CommandLink;
c. Acts or omissions of, or caused by, Customer, its employed staff, contracted representatives, end users or other third parties
d. If Customer is receiving rate limited Services as a result of data, priority or plan allowances being exceeded;
e. a Force Majeure Event;
f. Termination or suspension of Service and/or Customer's right to use the Service in accordance with the MSA or Order Form, including for cause due to a Customer breach;
g. CommandLink Parties' lack of reasonable access to Customer's Location; and/or
h. Interruptions to a Service due to power failure or outage at a Customer Location.
