MASTER SERVICE AGREEMENT
This Master Service Agreement (the “Agreement”) shall govern the provision of any software, voice, security, internet or network 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 Swarovski Canada Limited (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.
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 as set forth herein; 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.
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 a user policy acknowledgements required by the third-party providers of such software; Customer shall comply with any such user policy acknowledgements.
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.
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. Portability. At any time during the Service Term, Customer may elect to substitute new Services for then-existing Services without incurring any Termination Fee, provided: (i) the costs and fees payable to Provider in connection with the substitute Services are equal to or greater than the costs and fees of the discontinued Services; (ii) with respect to the applicable Services, portability is available to CommandLink with the underlying service provider and Customer meets any appliable requirements of the underlying service provider or vendor regarding the same, including using the same service provider or vendor for the substitute Services; (iii) Customer commits to retain the substitute Services for a new, full Service Term of at least equal length to the original Service Term of the Services subject to substitution, provided, however, that CommandLink shall request that any applicable vendor provide shorter term options for the substituted Services, and if such shorter terms are offered by an applicable vendor, CommandLink shall offer those shorter term options to Customer; (iv) Customer pays all applicable installation and other expenses and NRCs, if any, for provision of the substitute Services; (v) Customer reimburses CommandLink for all reasonable and documented engineering, installation and construction costs associated with the discontinued Services, calculated on a time and materials basis, that have not already been recovered by CommandLink by the time of the substitution; and (vi) the Customer orders the replacement Services at least sixty (60) days prior to the termination of the Service Term for the applicable Services.
c. Business Downturn. The Customer may request permanent closure and disconnection of any Customer Circuit and related Service with a reduced Termination Fee as set forth in this Section 8(c), provided: (i) the applicable Customer Circuit(s) and Service(s) have been installed and operated for a minimum of twelve (12) months; (ii) during the Service Term and any renewal or extension thereof, the cumulative Customer Circuit(s) and Service(s) subject to this Section 8(c) do not represent more than ten percent (10%) of the current MRCs for all Customer Circuits and related Services; (iii) any closure and disconnection is the result of a downturn in the Customer’s business; (iv) Customer’s account with CommandLink is current and there are no overdue fees, payments or charges; (v) Customer is liable for and pays any costs, expenses, waived circuit build costs, or other NRCs incurred by CommandLink in closing or disconnecting the Customer Circuit or any Services related thereto; (vi) Customer provides CommandLink with prior written notice of such request certifying it complies
with all the requirements of this Section 8(c) at least sixty (60) days prior to the expiration or earlier termination of the applicable Service Term; (vii) neither CommandLink nor the underlying service provider or vendor incurred any construction, build or related expenditures for installation of the applicable Customer Circuit or Service, provided that if the underlying service provider incurred such expenses, CommandLink shall provide Customer with documentation of such expenses and shall use reasonable efforts to negotiate with the underlying service provider or vendor to provide alternative arrangements for the requested closure and disconnection or Customer shall reimburse CommandLink for the same; (viii) the underlying service provider or vendor does not assess any other fees or charges related to the closure or disconnection, unless Customer agrees to pay for such additional fees or charges, and (ix) the closure or discontinuation of the Customer Circuit or the related Service is not due to a transfer of any portion of the Service to another provider (collectively, a “Downturn”). In the event of a Downturn that meets the foregoing requirements,
the applicable Termination Fee as set forth in Section 16 will be reduced by twenty percent (20%) for Customer Circuits and related Services that have been installed and operated between twelve (12) and twenty-four (24) months and reduced thirty-five percent (35%) for Customer Circuits and related Services that have been installed and operated between twenty-four (24) and thirty-six (36) months. In the event of any Downturn.
Customer shall remain liable for the fees and cost of the Services through the effective date of the termination. Notwithstanding the foregoing, if underlying service providers, vendors, carriers or other third parties impose any fees or other charges that exceed the reduced Termination Fees set forth in this Section 8(c), Customer shall be solely responsible for such fees or charges.
d. 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.
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.
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 Because these expenses fluctuate, CommandLink shall charge 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, provided that CommandLink shall not charge customer an RRS of more than eleven percent (11%) for the Initial Service Term and shall include the RRS as an itemized item on each monthly invoice.. 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 set by governmental agencies (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.
11. Payment Terms and Delinquent Payments. Invoices are due upon receipt. If invoices are not paid within thirty (30) days from the date of the invoice, they shall be considered late. After such thirty (30) day period, all undisputed 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. 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 raise its rates and fees: (a) by the amount an applicable provider or vendor raises its rates during any Service Term, provided CommandLink provides written substantiation of such third- party increase; or (b) at the commencement of any Extension Term, provided that CommandLink has provided written notice of such rate increase at least sixty (60) days prior to the expiration of the Service Term (or the then-current Extension Term). 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 following the date of such notice.
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:
CommandLink, LLC 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 similar exactions imposed on or with respect to the Services and/or Products, whether usch Taxes are imposed directly upon Customer or 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 on a month to month 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 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 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, 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 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 it or to the same.
20. Choice of Law; Waiver of Trial by Jury. This Agreement shall be deemed to have been made in and shall be constructed pursuant to the laws of the State of Delaware and the United States of America, without regard to conflict of law principles thereof. 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, decrypting, 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.
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. 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 or Canada 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 or Canada. Pricing in other jurisdictions may be greater and is subject to local prices available in the applicable jurisdiction.
d. Engineer Consultation Fee. Engineering consulting services performed by CommandLink that are outside of the scope of this Agreement (i.e., normal service management and support), including consulting services for route switching, security, compliance, network design, etc., shall be subject to an “Engineering Consulting Fee” at an hourly rate of $300.00 and may be further subject to a customized scope of work to be negotiated by CommandLink and Customer in writing.
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. Returned Check Fee. $25.00 will be charged for any payment being returned from Customer’s financial institution.
i. 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.
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 by an agreement in writing signed by each party.
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 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:
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 physical, technical and organizational security 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.
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.
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 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, not to be unreasonably withheld. 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.
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); and 30 (Miscellaneous).
SERVICE LEVEL AGREEMENT
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”).
d. “Network Packet Delivery” refers to the successful delivery of units of data carried over a network.
2. Network Outage. For each cumulative one (1) hour period where a location with 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 at least one dedicated Bandwidth|Link or MPLS|Link connection from CommandLink at the impacted location;
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 and Canada: (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 or Canada 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.
6. 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.
7. 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.
8. 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.
9. 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:
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.