MASTER SERVICE AGREEMENT
This Master Service Agreement (the “Agreement”) shall govern the provision of any software, voice, security, internet, network or professional services or products (collectively, the “Services” or “Products”) by CommandLink, LLC and its subsidiaries, affiliates, members, directors, officers, employees, beneficiaries, contractors, agents or assigns (collectively, along with CommandLink, LLC, referred to as “CommandLink” herein) to any person or entity utilizing such Services or to which CommandLink is providing the Services (collectively, the “Customer”). This Agreement expressly supersedes and revokes any previous agreements executed or otherwise made between CommandLink and Customer and shall henceforward govern all Services provided by CommandLink to Customer. Customer and CommandLink may be referred to herein individually as a “party” and collectively as “parties.”
1. Services. All Services performed by CommandLink shall be subject to the terms and conditions of this Agreement. By this reference, this Agreement is attached to, incorporated and made a part of the Order Form (a “Order Form”) prepared by CommandLink or one of its sales representatives and executed by Customer. Any capitalized terms not defined herein shall have the meaning given to them in the Order Form. 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 and its suppliers 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. 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 discontinue any Service or product without liability. Customer agrees that IP addresses are not guaranteed, transferable or provided for further distribution.
2. Products and Services. CommandLink may provide one or more of the following Products or Services based on the Customer’s completion of the Order Form, and all Products and Services provided by CommandLink 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 similar Services.
b. “Network-as-a-Service” - Network and/or internet connectivity, including ethernet, fiber, broadband, wireless access, and/or T1/NxT1 using the “Bandwidth|Link” product or “MPLS/Link” product and similar Services.
c. “SDWAN” - Software-defined cloud networking services and similar Services using the “SDWAN|Link” Product and/or similar Products.
d. “Security” - Managed network security services and similar Services using the “Security|Link” Product and/or similar Products.
e. “Software” - Use of the “CommandLink” Product, a software-as-a-service platform, for cloud and productivity management and similar Products and Services.
f. “Voice Services” - Business-class voice over IP (“VoIP”) services or similar Services using one or more of the following products: i) “UCaaS|Link;” ii) “SIP|Link” and/or iii) “CCaaS|Link,” or similar Products
g. “Professional Services” - Includes Services required for implementation, integration, configuring CommandLink’s platform, software development, 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.
3. Customer 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, 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, management, compatibility, etc. 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. If Customer determines after Installation that such CPE is not compatible with the CommandLink network, 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 a CommandLink Product in lieu of CPE, in which case CommandLink will charge Customer CommandLink’s then standard fee or price for such Product and charge Customer for the field service technician fee(s) required to install or setup such Product.
b. Warranty Disclaimer. In addition to the warranty disclaimers elsewhere in this Agreement, CommandLink explicitly disclaims 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 this Agreement. CommandLink is 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 dispatches 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 CPE Dispatch Fee (defined below) for services performed by the Service Tech. For the avoidance of doubt, Customer will not receive any Service Credits (defined below) if CPE is determined by CommandLink to have contributed to the event for which Customer is requesting such Service Credit.
4. Third-Party Authorizations. Certain software necessary to utilize the Services may require Customer to accept additional terms and conditions required by the third-party providers of such software; Customer shall comply with any such additional terms and conditions.
5. Access and Data. Customer shall be solely responsible for safeguarding any username, identification number, password, license or security key, security token, PIN 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 (“Access Credentials”) and may be unable to access its files in the event any Access Credential is lost, forgotten, misappropriated, or otherwise compromised. Customer has and shall retain sole responsibility and liability for all Customer data and information, including data in any form or medium that is 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 harmless from any claim, liability, cost, loss, or expense arising from any breach or violation of the foregoing representations, warranties and covenants. Customer shall provide CommandLink and any third parties access to any properties or facilities to the extent necessary to provide the Services.
6. Product and Service Authorizations. CommandLink shall retain all right, title, ownership, control and interest in and to the Products and Services, including their operation, maintenance, provision and management. CommandLink grants to Customer a personal, nontransferable, nonexclusive, license to use the Products and Services during the term of this Agreement solely for Customer’s own internal use of the Services for its own business purposes. CommandLink will use commercially reasonable efforts to supply and configure the Products and Services to Customer’s personal computers to allow Customer to use the Services unless Customer has chosen to supply its own CommandLink-qualified equipment for network and/or internet connectivity.
7. Used and Upgraded Equipment. For any Products that Customer purchases through CommandLink, CommandLink may supply new or recertified equipment. From time to time and in CommandLink’s sole and absolute discretion, CommandLink may provide Product 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, but not limited to, the addition of software or other devices to CPE) of or other acts with respect to any Products by any person or party other than CommandLink.
8. Setup and Installation; Professional Services.
a. Installation. For purposes of this Agreement, with respect to the following Products and Services, “Installation” shall be deemed complete upon the occurrence of following:
i. For SD-WAN or Security, if Customer installs or is responsible for install pursuant to Customer’s Order Form, “Installation” is complete when phones and/or hard Products are received by or delivered to Customer. For SD-WAN or Security that CommandLink installs, “Installation” is complete when such Products are physically installed by CommandLink.
ii. For Voice, “Installation” is complete upon activation of the voice seats or physical installation of the Products, 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.
iv. For Software, “Installation” shall occur when Customer gains access to a CommandLink software product, or as otherwise defined in the scope of work.
v. For other Services, “Installation” is complete as indicated in the 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, CommandLink will permit Customer to accept a lower speed Service, if available, or Customer may decline the Service without a Termination Fee. If Customer declines the Service and, if Customer has ordered only that particular Service, Customer and/or CommandLink may terminate this Agreement. Customer will be responsible for any additional installation costs for any replacement Service, including, without limitation, inside wiring, DMARC extension, administration, or special costs or fees.
c. International Shipping. To the extent CommandLink ships any device, Product, 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 Products 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. Notwithstanding any other provisions in this Agreement, CommandLink 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 is 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. Professional Services. CommandLink shall provide Customer with Professional Services as mutually agreed upon in an executed scope of work or Order Form, which shall be incorporated by reference into and governed by the terms of this Agreement. 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 Section 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 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.
9. Monitoring. CommandLink and its vendors or suppliers have no obligation to monitor the Services, but in CommandLinks’ sole and absolute discretion, it may do so and disclose information regarding use of the Services, including but not limited to: (a) comply with laws, regulations, or governmental or legal requests or orders; (b) operate the Services properly; or (c) protect itself and its other users and Customers. Upon providing Customer with thirty (30) days prior notice, including the right to cure any facts giving rise to the need for such disclosure within that thirty (30) day time period unless disclosure is required by law within a shorter period of time, CommandLink may: (i) immediately remove any of Customer’s content, material or information from CommandLink servers, in whole or in part, if such content, material or information violates the terms and conditions of this Agreement; and (ii) CommandLink may disconnect any of Customer’s Services if Customer is in violation of the terms and conditions of this Agreement, and Customer will be responsible for any applicable costs or fees related to the same.
10. Fees and Payments.
a. Customer shall pay for all Services and Products that CommandLink furnishes to Customer at the applicable prices set forth in Customer’s Order Form, which do not include Taxes, 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 or Products. For instance, CommandLink may add line items to Customer’s monthly invoice for specific applicable local, state and federal Taxes that CommandLink collects and remits to governmental entities in connection with Customer’s services. CommandLink also incurs 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 a single, separate monthly “Regulatory Recovery Surcharge” or “RRS” (calculated as a variable percentage of Customer’s recurring billing for the period) to recover these costs rather than include them in base rates. The RRS is not itself a tax or fee required by the government; it is a fee that CommandLink assesses and retains. CommandLink may alter the components of the RRS in its sole discretion. If the RRS were bundled into the base rates, those rates would need to be set at higher amounts to accommodate potential variation.
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 any and all costs, fees or other liabilities or obligations triggered, agreed to, or incurred by CommandLink or other persons for the Services or Products after Customer executes the design review document or other similar scope of work document for the project, including hardware and equipment costs, licensing fees, and termination fees with network vendors. 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 1 invoice will charge Customer for Services to be received from July 1 through July 31. However, usage-based charges for Software (i.e., seat licenses) will be invoiced in the billing period after such Services have been provided.
c. Notwithstanding any other provisions in this Agreement, Customer shall timely pay and be responsible, or immediately reimburse CommandLink, if applicable, for any and all Taxes or other costs or fees resulting from any activation or use of LTE or 3G/4G/5G wireless backup connectivity or related Services or Products, including for 4G LTE backup, LTE supplied by CommandLink, LTE supplied by Customer, and other usage based BandwidthLink Internet Products. Such Taxes, costs or fees may include those related to or arising from overages or use of such Services beyond specified, typical or contractual limits. Customer agrees that such Products or Services may be subject to significant overage cost risk and fees for such Services may be up to thirty dollars ($30.00) per gigabyte. Customer shall be solely liable and responsible for the foregoing overage cost risk and any Taxes or other costs or fees and risks related to these Services and Products.
d. Notwithstanding any other provision in this Agreement, upon execution of this Agreement, Customer shall be liable for any non-refundable costs, expenses or fees incurred by CommandLink for the acquisition, procurement or purchase of any equipment, materials, services, products, or other items from vendors, providers, carriers, suppliers, or other third parties for the provision of the Services or Products, regardless of whether Installation or other work related to the Services or Products has been completed.
e. All prices, costs, fees, expenses and other amounts on any Order Form, invoice or other bill shall be expressed in U.S. dollars (“USD”). Costs and fees for Services or Products procured in a currency other than USD shall be converted to USD based on the then-applicable daily exchange rate for that currency versus the USD as indicated on the Order Form (“Applicable Exchange Rate”). If the Applicable Exchange Rate varies by more than five percent (5%) from the current daily exchange rate at any time, the Applicable Exchange Rate shall be adjusted to reflect the then-current daily exchange rate and applied to applicable costs and fees on the following invoices. This new Applicable Exchange Rate shall be compared to the daily exchange rate to calculate future revisions to the Applicable Exchange Rate, i.e., when there is equal to or greater than a five percent (5%) variation.
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 any and all costs and expenses incurred by CommandLink (including, without limitation, reasonable attorney’s fees and court costs) that CommandLink may incur collecting or attempting to collect late fees or costs. CommandLink reserves the right to charge Customer’s credit card on file to satisfy costs and fees owed by Customer, including but not limited to, if Customer’s check payment is cancelled, fails to process, or if Customer’s account remains past due. Customer shall pay CommandLink an additional three percent (3%) fee on all payments or charges made by credit card. 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 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 also raise its rates and fees for any other reason, effective thirty (30) days following notice to Customer. If Customer does not agree to accept new pricing that is not due to Regulatory Cost increases, Customer may terminate this Agreement without penalty within thirty (30) days of the date of such notice. Any continued use of the Services by Customer thirty (30) days after the date of the notice shall be deemed acceptance of the 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:
PO Box 1246
Everett, WA 98206-1246
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 so 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.
14. Taxes. Customer shall be responsible for and shall pay any and all applicable federal, state and local Taxes or other similar exactions imposed on or with respect to the Services and/or Products, whether such Taxes are imposed directly upon Customer or upon CommandLink. For purposes of this section 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. The term of this Agreement shall be staggered and shall commence for each physical location wherein the Services will be installed (a “Location”) upon completion of Installation as set forth in Section 8(a) of this Agreement (the “Effective Date”) at such Location. The term for such Services will run from the Effective Date for each Location for the minimum term set forth in Order Form (the “Service Term”), which Service Term is measured from the Effective Date for each Location. Unless otherwise provided, each individual Location Service Term 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. The Services and obligation to pay for such Services will continue and this Agreement will be automatically renewed after the end of the Service Term for another full Service Term equal in length to the original Service Term, unless either party terminates this Agreement or cancels such Service by providing at least thirty (30) days prior written notice to the other party. Either party may terminate this Agreement or a particular Service at any time by providing at least thirty (30) days prior written notice; provided, however, if Customer terminates this Agreement prior to the end of any Service Term or cancels or downgrades a particular Service prior to the end of its Service Term, or the Agreement or Services are terminated or suspended by CommandLink for a violation of this Agreement by Customer, termination fees shall apply as set forth in Section 16 of this Agreement (collectively “Termination Fees”). CommandLink also may terminate the Agreement 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, Customer's rights to use the Services and any rights, licenses, consents and authorizations granted hereunder immediately ceases and terminates. Upon termination of this Agreement for any reason or suspension or cancellation of delivery of the Services to Customer, Customer agrees to return any of the Products to CommandLink in their original condition (excepting normal wear and tear) within five (5) business days of such termination, suspension or cancellation. If Customer fails to return the Products within thirty (30) calendar days of such termination, suspension or cancellation, or refuses CommandLink access to such Products, then CommandLink shall have the right to add the full original purchase cost of those Products to Customer’s next invoice and Customer shall be immediately liable for the same.
16. Termination Fees. Upon termination of this Agreement, Customer shall pay CommandLink a Termination Fee for each Location in an amount equal to (a) the MRC (Monthly Recurring Charge) set forth on the Order Form multiplied by the number of months remaining in the Service Term, plus (b) any Taxes, surcharges or fees, plus (c) repayment of any NRCs set forth on the Order Form for the Service Location at issue that was originally waived or rebated, including, without limitation, costs or expenses for routers, managed routers, firewalls, other managed network devices, Circuit-related and/or build costs either charged or waived by CommandLink or its vendors, and data circuits (collectively, “Waived Charges”). Customer may upgrade to a higher grade of Service without an upgrade charge. However, Customer will be responsible for any additional Service, installation and/or equipment charges that are necessary to complete the upgrade. Likewise, Customer may downgrade without a Termination Fee provided that the original Service Term has expired. However, additional Service, installation and equipment charges will apply as necessary to complete the downgrade request.
17. Disclaimers. COMMANDLINK DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES AND PRODUCTS CAN BE PROVISIONED TO EACH CUSTOMER’S LOCATION, OR THAT PROVISIONING OF SUCH SERVICES AND PRODUCTS WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF COMMANDLINK HAS ACCEPTED CUSTOMER’S ORDER FORM FOR THE SERVICES. THE PROVISIONING OF THE SERVICES AND PRODUCTS 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 AND PRODUCTS 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 DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES OR CONDITIONS, INCLUDING, BUT NOT LIMITED TO, 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 HEREIN, COMMANDLINK DOES NOT WARRANT THAT THE PRODUCTS OR 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 COMMANDLINK 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 COMMANDLINK’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT OR WITH RESPECT TO THE SERVICES OR PRODUCTS, 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 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 OR PRODUCTS; (b) THE DOWNLOADING OR USE OF ANY INFORMATION, DATA OR MATERIALS OBTAINED VIA THE SERVICES, PRODUCTS 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, BUT NOT LIMITED TO, 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 PRODUCTS OR COMBINATION OF SERVICES OR PRODUCTS 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 (AS DEFINED BELOW). 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 PRODUCTS 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 THE FAILURE AND NON-PERFORMANCE OF THE SERVICE TO MEET THE SERVICE LEVEL AGREEMENTS SHALL BE TO RECEIVE A CORRESPONDING SERVICE CREDIT.
19. Confidentiality; Reservation of Rights. Customer acknowledges that the Services and Products contain proprietary and confidential information of CommandLink and its vendors and suppliers. Customer agrees to not disclose the Services and Products, or information regarding the same, to third parties without the prior written consent of CommandLink. The Services and Products shall not be reengineered, reverse engineered, decomposed, or disassembled, and Customer shall not create or recreate the source code for the Services or Products. 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 or Products. The Products and Services provided to or made available to Customer in connection with the Services 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 or its vendors or suppliers are and shall remain the sole property of CommandLink or its vendors or suppliers and nothing in this Agreement shall grant Customer any right, title, interest or license to it or to the same.
20. 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 inconvienence of forum, to the laying of venue in such courts. CUSTOMER AGREES THAT IT AND COMMANDLINK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION LAWSUIT.
21. Force Majeure. Neither party shall be responsible for any failure to perform due to unforeseen circumstances or to causes beyond such party’s reasonable control, including, but not limited to, acts of god, changes in governmental laws, rules, regulations or orders, war, terrorist acts, insurrection, disease, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages in transportation, facilities, fuel, energy, labor or materials (collectively, a “Force Majeure Event”).
22. Acceptable Use Requirements. The Services and Products may only be used for acceptable uses, as determined by CommandLink in its sole and absolute discretion. The following uses are prohibited:
a. Illegal Use. 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. Such uses include, without limitation, 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, without limitation, 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, without adequate security and a legitimate purpose (as determined by CommandLink), any of the following:
1. Information from users under the age of eighteen (18) without consent from such users’ parents or legal guardians;
2. User’s personal health information or personal financial information without informed consent from such user; or
3. Other personal information without advising the user;
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 harm 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 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. Harvesting or collecting information about third parties without consent;
xx. Sending bulk communications or other content without the recipient’s consent;
xxi. Using any device, system, network, account, plan, or the Services in an unauthorized manner or in excess of reasonable business use.
xxii. Taking advantage of, bypassing, exploiting, defeating, disabling, or otherwise circumventing limitations of the Services, security mechanisms, or compliance with this Agreement or any law.
xxiii. Intercepting, capturing, sniffing, monitoring, modifying, emulating, decryptubg, or redirecting any communication or data for any purpose.
xxiv. Posting five (5) or more messages similar in content to usenet or other newsgroups, listservs, forums, e-mail mailing lists or other groups or lists;
xxv. 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 FAQ's, rules, or policies or description of the group lists;
xxvi. Sending unsolicited e-mailings (including, without limitation, commercial advertising and information announcements) to more than five (5) e-mail addresses within a forty-eight (48) hour period, if such unsolicited e-mailings could reasonably be expected to or do in fact provoke complaints;
xxvii. Falsifying user information provided by CommandLink or other users of the Services;
xxviii. 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
xxix. 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 limitation, 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. Conducting or forwarding surveys, contests, pyramid schemes, charity requests or chain letters;
v. Relaying e-mail in an anonymous fashion or forging any transmission control protocol/internet protocol (“TCP-IP”) packet header(s); or
vi. 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.
d. Abuse and Threats. Any abuse, threats, harassment, profanity or vulgarities, including sexual harassment, made to or directed at CommandLink or its 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 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 if, in CommandLink’s sole discretion, Customer’s use of the Services 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.
23. 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. Change of Service Fee. $100.00 will be charged to Customer per Location when requesting to downgrade or decrease its level of Products or Services plus any applicable cancellation charges and Termination Fees.
b. Move Fee. For moving Services from one Location to another, $500 will be charged to Customer per Location to cover costs of project management and design engineering. Professional installation, decommissioning field services and other fees may also apply.
c. Dispatch Fee. When a CommandLink service technician (a “Service Tech”) is dispatched in the United States to address a Trouble Ticket or any other issue not directly caused by CommandLink (a “Customer Issue”), Customer shall incur a minimum “Dispatch Fee” equal to $375.00 for the first two hours of labor expended by the Service Tech. Thereafter, $175.00 shall be charged for each whole or partial one (1) hour increment a Service Tech is addressing a Trouble Ticket or other Customer Issue in the United States. Pricing in other jurisdictions may be greater and is subject to local prices available in the applicable jurisdiction.
d. Engineer Consultation or Professional Services Fee. Engineering consulting services or other Professional Services performed by CommandLink that are outside normal service management and support for the Services set forth in Sections 2(a) through 2(f), including professional or consulting services for route switching, security, compliance, network design, configuration, training, etc., shall be subject to an “Engineering Consulting Fee” or “Professional Services Fee” at an hourly rate of a minimum of $300.00 and may be further subject to a customized scope of work or Order Form to be negotiated by CommandLink and Customer in writing. See Section 8(f) above for additional terms and conditions applicable to Professional Services.
e. CPE Dispatch Fee. A minimum “CPE Dispatch Fee” of $375.00 will be charged to service non-CommandLink-related service issues. Thereafter, $50.00 shall be charged for each whole or partial fifteen (15) minute increment a Service Tech is addressing a Trouble Ticket or other Customer Issue for the first two hours of labor expended. The CPE Dispatch Fee of $350.00 shall be paid in addition to a Dispatch Fee.
f. Inside Wiring Fee. Rates for indoor wiring necessary to accommodate the Services will be quoted separately, but a site review for purposes of evaluating existing indoor wiring shall be billed as a Dispatch Fee.
g. Missed Appointment/No Access Fee. $250.00 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.
h. Outbound Switch Fee. $225.00 plus Termination Fees and any and all additional cancellation charges and costs shall be charged for all requests to have Customer’s Service switched to another internet service provider during the Term.
i. Returned Check Fee. $25.00 will be charged for any payment being returned from Customer’s financial institution.
j. 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.24. Amendment or Modification by CommandLink. Except for increases to rates and fees charged herein, 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.
25. 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.
26. 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 or its vendors, outside collection agencies, outside counsel or other parties acting on behalf of CommandLink to contact Customer by any means or methods, including electronic means, regarding the Services and Products, including in connection with any past due charges of fees for such Services of Products. Customer authorizes CommandLink 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 and all third parties to CommandLink. Customer agrees to provide accurate, current and complete contact information to CommandLink 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 in connection with the Service is true, accurate, current and complete. Notices to CommandLink must be sent to:
PO Box 1246
Everett, WA 98206-1246
With a Copy to:
Keating & Lyden, LLC
3020 Carbon Place, Suite 202
Boulder, CO 80301
27. Privacy and Security Policy. The following policies and procedures set forth in this Section (the “Policy”) have been adopted by CommandLink to address security of its Products and Services and confidentiality of data transmitted thereon.
b. Collection, Privacy and Use of Information. 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 its Services. CommandLink may share such information as needed internally and with third parties to meet its business goals, to fulfill its legal or contractual obligations or to comply with applicable law. CommandLink takes measures to protect the information it has regarding customers, and CommandLink requires those it shares such information with to protect it as well. CommandLink uses customer information generated on its networks to manage those networks, to plan for future development, and to keep its Services running reliably and efficiently. For example, CommandLink monitors data to check for viruses, to control spam, to prevent attacks that might disable its Services, to ensure that customer’s traffic does not violate a customer’s Master Service Agreement or related legal materials, and to guard against other inappropriate or illegal activity. This may involve 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 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 to provide the content of broadband traffic or the network to law enforcement or private parties through the submission of legal subpoenas. CommandLink may occasionally hire other companies to provide limited services on its behalf, including 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 the services, and CommandLink’s contracts with such companies contain confidentiality protections. Other than what is described herein, CommandLink does not sell, trade or rent Customer personal information or Service-related data to others outside of CommandLink or their advertising and promotional agencies and consultants. 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 the security of Customer Data and or other information transmitted via the internet.
28. Service Level Agreements; Comcast Services.
a. Service Level Agreement. Customer agrees to abide by and be subject to CommandLink’s Service Level Agreements (“SLAs”) for the Services, which shall be incorporated herein by reference. Based on the terms thereof, Customer may be eligible for specific reductions in future MRC owed by Customer (“Service Credits”).
b. Comcast Services. Notwithstanding any provision in this Agreement to the contrary, if the Services include services, facilities, devices, software, equipment or products provided by Comcast Cable Communications Management, LLC or its subsidiaries, parent companies or affiliates (“Comcast”) (collectively, the “Comcast Services”):
i. Customer shall and shall cause its subsidiaries, affiliates, members, directors, officers, employees, beneficiaries, agents or assign and any other end users to (1) not infringe upon, undermine, encroach or limit Comcast’s proprietary rights, including intellectual property rights, in the Comcast Services by their acts or omissions or otherwise (and Comcast retains all title and rights with respect to the Comcast Services); (2) fully comply with the Comcast High-Speed Internet for Business Acceptable Use Policy, which sets forth additional terms and conditions applicable to the Comcast Services (the Comcast AUP can be accessed via the following URL: http://business.comcast.com/customer-notifications/acceptable-use-policy, as the same may be updated, revised or renamed by Comcast from time-to-time, and if applicable, Customer represents that it has reviewed such policy); and (3) not relocate, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any Comcast Services.
ii. CommandLink makes no representations or warranties on behalf of Comcast or other third parties and Comcast and the Comcast Services are subject to any and all disclaimers and limitations of liability set forth in this Agreement, including the limitations in Sections 17 (Disclaimers) and 18 (Limitation on Liability).
iii. Customer disclaims and Comcast shall not be liable for any direct, indirect, incidental, special, punitive, or consequential losses or damages including loss of profits, loss of earnings, loss of business opportunities and personal injuries (including death), resulting directly or indirectly out of, or otherwise arising in connection with the use of the Comcast Services by Customer and/or any end users or any other user of the Comcast Services, including without limitation, damage resulting from or arising out of any person’s reliance on or use of the Comcast Services, or the mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operations, transmission, or failure of performance of the Comcast Services.
iv. Customer shall not and does not intend to resell the Comcast Services in whole or in part and will not otherwise transfer the Comcast Service to any other person.
v. Customer shall reimburse CommandLink for any damage to or loss of the facilities, devices, software, equipment or products associated with the Comcast Services and shall return the same to Comcast within ten (10) days of the termination of any Services that include Comcast Services.
29. 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 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. 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 from and against all liabilities, obligations, claims, demands, costs and expenses, including, but not limited to, reasonable attorneys’ and experts’ fees, incurred, suffered or imposed upon CommandLink 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 both the data line and/or the fax machine itself may not be capable of delivering satisfactory fax operation for Voice Services. In addition, the fax machine may not work at all.
d. Account Changes. Customer may change Voice Service features or Voice Service plans by notifying CommandLink and paying CommandLink’s standard charges, including any applicable early termination or cancellation fees, and by complying with any other requirements of CommandLink to accomplish the change. Changes will generally take effect by Customer’s next billing cycle.
e. 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 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 has 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.
f. 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 broadband 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 Service Agreement or 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 place 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. 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 THE RAY BAUM’S ACT OR SIMILAR LAWS RELATED TO E911 AND COMMANDLINK SHALL NOT BE LIABILE FOR ANY LIABILITIES ARISING FROM OR RELATED TO THE FAILURE BY COMMANDLINK, CUSTOMER, OR ANY THIRD PARTY TO COMPLY WITH SUCH LAWS.
a. Organization; Authority. Customer is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization. Customer and the signatory of Customer under the Order Form represent that they have and possess the full legal right, power, authority and ability to enter into the Order Form and this Agreement.
b. 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.
c. Entire Agreement. The Order Form and this Agreement set forth all of the promises, covenants, agreements, conditions and undertakings between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and undertakings, inducements or conditions, express or implied, oral or written.
d. 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.
e. Counterparts. This Agreement 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 (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) 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.
f. Severability. If any 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 find and employ an alternative means to achieve the same result, including the same economic result, as that contemplated by such invalid, illegal, void or unenforceable term or provision.
g. 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.
h. Assignment. Customer may not assign this Agreement without the prior written consent of CommandLink. CommandLink may assign or subcontract its duties under this Agreement to third parties in its sole discretion.
i. Headings. 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.
j. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties, their members, managers, successors and assigns.
k. Interpretation. 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. The 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.
l. 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, but not limited to those in the following Sections: 10 (Fees and Payments), 11 (Delinquent Payments) 13 (Billing Disputes), 14 (Taxes), 15 (Term and Termination), 16 (Termination Fees), 17 (Disclaimers), 18 (Limitation on Liability), 19 (Confidentiality; Reservation of Rights), 20 (Choice of Law; Waiver of Trial by Jury), 21 (Force Majeure), 22 (Acceptable Use Requirements), 24 (Amendment or Modification by CommandLink), 25 (Non-Solicitation), 26 (Notices and Contacts), 27 (Privacy and Security Policy), 28 (Service Level Agreements; Comcast Services); 29 (Voice Service Details); and 30 (Miscellaneous).This Agreement shall be automatically binding on any Customer using any CommandLink Product or Service and shall become effective upon Customer’s execution of CommandLink’s Order Form.
SERVICE LEVEL AGREEMENT
The provision of Services and/or Products by CommandLink, LLC, a Washington limited liability company, are subject to the terms and conditions set forth in the following Service Level Agreements (“SLAs”). The CommandLink “Order Form” for the Services shall be expressly incorporated herein and the delivery, installation and provision of Services shall be subject to CommandLink’s Master Service Agreement (“MSA”), which can be found at: https://www.commandlink.com/terms-of-service. Customer agrees to abide by and be subject to the Service Level Agreements (“SLAs”) set forth herein as well as the Order Form and MSA. Based on the terms hereof, Customer may be eligible for specific reductions in future monthly recurring charges (“MRC”) owed by Customer (“Service Credits”). Any terms not defined herein shall be ascribed the definition 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 Network as-a-Service is unable to transmit data. 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 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. “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. Network Outage. For each cumulative one (1) hour period where SDWAN or Network-as-a-Service 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;
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. CPE failure is not the cause of the Network Outage.
3. Network Latency. For Locations in the United States: (a) Network Latency for Service Credit purposes is calculated on a monthly basis; and (b) if monthly average Network Latency exceeds fifty (50) milliseconds (ms) for any calendar month (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; provided, however, Bandwidth|Link broadband services do not qualify for a Network Latency Service Credit, unless the underlying internet service provider specifically allows for such in their service level agreements, which CommandLink will pass on to the Customer, if applicable, on a case by case basis. Notwithstanding the foregoing, Network Latency calculations for Locations outside of the United States are subject to a separate technical review and shall be separately agreed to by CommandLink and the Customer based on that review.
4. Network Packet Delivery. Packet delivery is measured on an ongoing basis to determine a consistent average monthly performance level for data actually delivered between POPs. 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.
5. Chronic Service Issue. If a Chronic Service Issue occurs at least three (3) times or more during any calendar month for any single Location, and the third Chronic Service Issue 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 to the reasonable satisfaction of Customer by the expiration of the Remediation Period, Customer shall have the option of terminating Services to the Location experiencing the Chronic Service Issue without penalty, including, without limitation, the payment of any early Termination Fee.
6. 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.
7. 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 and absolute discretion.
8. 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.
9. 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.
10. Installation. Installation of Products and 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 Product or provide a Service, Customer may elect to move forward with the installation any pay applicable construction costs for the Build Out, or the Customer can cancel the affected Product or Service without penalty or obligation to CommandLink. Should the installation of a Product or 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 monthly recurring charge (MRC):
Less than or equal to 90 days after Build Out
Bandwidth|Link – Dedicated, Ethernet, Fiber
Less than or equal to 90 days after Build Out
Bandwidth|Link – EoC, EoDS1, NxT1
Less than or equal to 35 days after Build Out
Bandwidth|Link – Broadband - Cable, DSL, FTTx
Less than or equal to 35 days, barring build
Less than or equal to 14 days
Less than or equal to 14 days
Less than or equal to 14 days, plus time req’d to port DID(s)
Less than or equal to 14 days, plus time req’d to port DID(s)
Less than or equal to 14 days, plus time req’d to port DID(s)
11. 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 15 days of a Product or 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.
12. 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.
13. Service Credit Ineligibility. Customer will not be entitled to Service Credits if an event was caused by any of the following:
a. Scheduled and/or emergency maintenance, service alteration, or implementation;
b. Failure of CPE;
c. Acts or omissions caused by Customer, its employed staff, contracted representatives, or end users;
d. Events involving force majeure;
e. Termination for cause due to a Customer breach of the MSA or Order Form;
f. CommandLink’s lack of reasonable access to Customer’s Location; and/or
g. Interruptions to a Service due to power failure at a Customer Location.