Master Service Agreement
EXHIBIT
10.5
This
Master Service Agreement (“Agreement”) is made this 1 day of July, 2008, between
APEX Telecom Inc. (“APEX”) and ApexTalk Inc. (“Customer”).
This Agreement provides the general terms and conditions applicable to Customer
to lease the space at Apex data center and purchase of communications services
(“Service”) from APEX.
ARTICLE 1. ORDERS FOR AND
DELIVERY OF SERVICE
1.1 Submission
and Acceptance of Customer Order(s). Customer may submit requests
for Service in a form designated by APEX (“Customer
Order”). The Customer Order shall contain the duration for which Service is
ordered (“Service Term”) and pricing for Service.
1.2 Location. 000 Xxxx Xxx. Xxx Xxxxxxxxx,
XX
1.3 Term. The term of the use of the
Service shall be 12 months, Service will continue on a month to month basis at
the expiration of the Service Term.
1.4 Monthly
fee. The monthly
fee will be $200 per month ($150 for co-location; $50 for 8 lines / bandwidth)
until further negotiation between the parties.
1.5 Credit
Approval.
Customer will provide APEX with credit information as requested. APEX may
require Customer to make a deposit as a condition of APEX’s acceptance of any
Customer Order or continuation of: a) any usage-based Service; or b) any
non-usage based Service where Customer fails to timely make any payment due
hereunder or APEX reasonably determines that Customer has had an adverse change
in financial condition. Deposits will not exceed 2 months’ estimated charges for
Service and will be due upon APEX’s written request. When Service is
discontinued, the deposit will be credited to Customer’s account and the balance
refunded.
1.6 Scheduled
Maintenance and Local Access. Scheduled maintenance will
not normally result in Service interruption. If scheduled maintenance requires
Service interruption, APEX will (i) provide Customer 7 days’ prior written
notice, (ii) work with Customer to try to minimize Service interruptions and
(iii) use commercially reasonable efforts to perform such maintenance between
midnight and 6:00 a.m. local time. If third party provided local access services
are obtained by Customer, Customer will: (i) provide APEX with circuit facility
information, firm order commitment information and necessary design layout
records to enable cross-connects to APEX Service(s) (such cross connects being
provided by APEX subject to applicable charges), (ii) cooperate with APEX in
connection with APEX circuit grooming, and (iii) where a related Service is
disconnected or terminated, promptly provide APEX a written disconnection firm
order commitment from the relevant third party provider.
ARTICLE 2. BILLING AND
PAYMENT
2.1 Commencement
of Billing. APEX
will deliver written or electronic notice (a “Connection Notice”) to Customer
upon installation of Service, at which time billing will commence (“Service
Commencement Date”), regardless of whether Customer is prepared to accept
delivery of Service. If Customer notifies APEX within 3 days after delivery of
the Connection Notice that Service is not functioning properly (and such Service
is not functioning properly), APEX will correct any deficiencies and, upon
Customer’s request, credit Customer’s account in the amount of 1/30 of the
applicable MRC for each day the Service did not function properly.
2.2 Payment
of Invoices and Disputes. Invoices are delivered
monthly and due 30 days after the date of invoice. Fixed charges are billed in
advance and usage-based charges are billed in arrears. Billing for partial
months is prorated. Past due amounts bear interest at 1.5% per month or the
highest rate allowed by law (whichever is less). Customer is responsible for all
charges respecting the Service, even if incurred as the result of unauthorized
use. If Customer reasonably disputes an invoice, Customer must pay the
undisputed amount and submit written notice of the disputed amount (with details
of the nature of the dispute and the Services and invoice(s) disputed). Disputes
must be submitted in writing within 90 days from the date of the invoice. If the
dispute is resolved against Customer, Customer shall pay such amounts plus
interest from the date originally due.
-1-
2.3 Taxes and
Fees. Except for
taxes based on APEX’s net income, Customer will be responsible for all taxes and
fees that arise in any jurisdiction, including value added, consumption, sales,
use, gross receipts, foreign withholding (which will be grossed up), excise,
access, bypass, franchise or other taxes, fees, duties, charges or surcharges
imposed on or incident to the provision, sale or use of Service (whether imposed
on APEX or any affiliate of APEX). Such charges may be shown on invoices as cost
recovery fees. Charges for Service are exclusive of taxes. Customer may present
APEX a valid exemption certificate and APEX will give effect thereto
prospectively.
2.4 Regulatory
and Legal Changes. If any change in applicable law,
regulation, rule or order materially affects delivery of Service, the parties
will negotiate appropriate changes to this Agreement. If the parties are unable
to reach agreement within 30 days after APEX’s delivery of written notice
requesting renegotiation: (a) APEX may pass any increased costs relating to
delivery of Service through to Customer and (b) if APEX does so, Customer may
terminate the affected Service without termination liability by delivering
written notice to APEX within 30 days.
2.5 Cancellation
and Termination Charges.
(A) Customer
may cancel a Customer Order (or portion thereof) prior to delivery of the
Connection Notice upon written notice to APEX identifying the affected Customer
Order and Service. If Customer does so, Customer shall pay APEX a cancellation
charge equal to the sum of: (i) for “off-net” Service, third party termination
charges for the cancelled Service, (ii) for “on-net” Service, 1 month’s monthly
recurring charges for the cancelled Service; (iii) the non-recurring charges for
the cancelled Service; and (iv) APEX’s out of pocket costs (if any) incurred in
constructing facilities necessary for Service delivery.
(B) Customer
may terminate Service after delivery of the Connection Notice upon 30 days’
written notice to APEX identifying the terminated Service. If Customer does so,
or if Service is terminated by APEX as the result of an uncured default by
Customer, Customer shall pay APEX a termination charge equal to the sum of: (i)
all unpaid amounts for Service provided through the date of termination; (ii)
100% of the remaining monthly recurring charges for months 1-12 of the Service
Term; and (iii) 50% of the remaining monthly recurring charges for month 13
through the end of the Service Term. The parties agree that the charges in this
Section are a genuine estimate of APEX’s actual damages and are not a
penalty.
ARTICLE 3.
DEFAULT
If (A)
Customer fails to make any payment when due and such failure continues for 5
business days after written notice from APEX, or (B) either party fails to
observe or perform any other material term of this Agreement and such failure
continues for 30 days after written notice from the other party, then the
non-defaulting party may: (i) terminate this Agreement and/or any Customer
Order, in whole or in part, and/or (ii) subject to Section 4.1, pursue any
remedies it may have at law or in equity.
ARTICLE 4. LIABILITIES AND
SERVICE LEVELS
4.1 No
Special Damages.
Neither party shall be liable for any damages for lost profits, lost
revenues, loss of goodwill, loss of anticipated savings, loss of data or cost of
purchasing replacement services, or any indirect, incidental, special,
consequential, exemplary or punitive damages arising out of the performance or
failure to perform under this Agreement or any Customer Order.
4.2 Disclaimer
of Warranties.
APEX MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER
IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET
FORTH IN THIS AGREEMENT OR ANY APPLICABLE SERVICE SCHEDULE.
4.3 Service
Levels. The
“Service Level” commitments applicable to the Services are found in APEX’s
Service Schedules for each Service. If APEX does not achieve a Service Level, a
credit will be issued to Customer as set forth in the applicable Service
Schedule upon Customer’s request. APEX’s maintenance log and trouble ticketing
systems will be used for calculating any Service Level events. To request a
credit, Customer must contact APEX Customer Service (contact information can be
found at xxx.xxxxxxxxxxx.xxx) or deliver a
written request (with sufficient detail necessary to identify the affected
Service) within 60 days after the end of the month in which the credit was
earned. In no event shall the total credits issued to Customer per month exceed
the non-recurring and monthly recurring charges for the affected Service for
that month. Customer’s
sole remedies for any outages, failures to deliver or defects in Service are
contained in the Service Levels applicable to the affected
Service.
-2-
4.4 Right of
Termination for Installation Delay. In lieu of any Service Level
credits for installation delays, if APEX’s installation of Service is delayed
for more than 30 business days beyond the Customer Commit Date, Customer may
terminate the affected Service upon written notice to APEX and without payment
of any applicable termination charge, provided such written notice is delivered
prior to APEX delivering a Connection Notice for the affected Service. This
Section shall not apply to any Service where APEX has agreed to construct
network facilities in or to a new location not previously served by
APEX.
ARTICLE 5. GENERAL
TERMS
5.1 Force
Majeure. Neither
party shall be liable, nor shall any credit allowance or other remedy be
extended, for any failure of performance or equipment due to causes beyond such
party’s reasonable control (“force majeure event’). In the event APEX is unable
to deliver Service as a result of a force majeure event, Customer shall not be
obligated to pay APEX for the affected Service for so long as APEX is unable to
deliver the affected Service. Force majeure events along with scheduled
maintenance under section 1.4 shall be considered “Excused
Outages.”
5.2 Assignment
and Resale.
Customer may not assign its rights or obligations under this Agreement or
any Customer Order without the prior written consent of APEX, which will not be
unreasonably withheld. This Agreement shall apply to any permitted transferees
or assignees. Customer may resell or otherwise provide the Service to third
parties, provided that Customer shall indemnify, defend and hold APEX and its
affiliates harmless from any claims arising from any Services resold or
otherwise provided by Customer. If Customer resells telecommunications services,
Customer certifies that it has filed all required documentation and will at all
relevant times have the requisite authority with appropriate regulatory agencies
respecting the same. Nothing in this Agreement, express or implied, is intended
to or shall confer upon any third party any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
5.3 Affiliates. Service may be provided to
Customer pursuant to this Agreement by an affiliate of APEX, but APEX shall
remain responsible to Customer for the delivery and performance of the Service.
Customer’s affiliates may purchase Service pursuant to this Agreement. Customer
shall be jointly and severally liable for all claims and liabilities related to
Service ordered by any Customer affiliate, and any default under this Agreement
by any Customer affiliate shall also be a default by Customer.
5.4 Notices.
All notices shall be in writing and sufficient and received
if delivered in person, or when sent via facsimile, pre-paid overnight courier,
electronic mail (if an e-mail address is provided below) or sent by U.S. Postal
Service (or First Class International Post (as applicable)), addressed as
follows:
| IF TO APEX: | IF TO CUSTOMER: | ||
| For all notices | |||
|
APEX
Telecom Inc
|
Apextalk,
Inc.
|
||
|
000
00xx
Xxxxxx.
Xxxxxxx,
XX 00000
Facsimile:
(510) 251-2442
|
000
Xxxxxx Xxxxxx
Xxx
Xxxxxxxxx, XX 00000
fax:
000 000 0000
|
||
Either
party may change its notice address upon notice to the other party. All notices
shall be deemed to have been given on (i) the date delivered if delivered
personally, by facsimile or e-mail (one business day after delivery if delivered
on a weekend or legal holiday), (ii) the business day after dispatch if sent by
overnight courier, or (iii) the third business day after posting if sent by U.S.
Postal Service (or other applicable postal delivery service).
5.5 Acceptable
Use Policy; Data Protection. Customer’s use of Service
shall comply with APEX’s Acceptable Use Policy and Privacy Policy, as
communicated in writing to Customer from time to time and which are also
available through APEX’s web site at xxx.xxxxxxxxxxx.xxx. APEX may transfer,
process and store billing and utilization data and other data necessary for
APEX’s operation of its network and for the performance of its obligations under
this Agreement to or from the United States. Customer consents that
APEX may
(i) transfer, store and process such data in the United States; and (ii) use
such data for its own internal purposes and as allowed by law. This data will
not be disclosed to third parties.
-3-
5.6 Marks and Publicity; Non-Disclosure. Neither party shall have the right to use the other party’s or
its affiliates’ trademarks, service marks or trade names without the prior
written consent of the other party. Neither party shall issue any press release
or other public statement relating to this Agreement, except as may be required
by law or agreed between the parties in writing. Any information or
documentation disclosed between the parties during the performance of this
Agreement (including this Agreement) shall be subject to the terms and
conditions of the applicable non-disclosure agreement then in effect between the
parties.
5.7 Governing
Law; Amendment. This
Agreement shall be governed and construed in accordance with the laws of the
State of California, without regard to its choice of law rules. This Agreement,
including any Service Schedule(s) and Customer Order(s) executed hereunder,
constitutes the entire and final agreement and understanding between the parties
with respect to the Service and supersedes all prior agreements relating to the
Service. This Agreement may only be modified or supplemented by an instrument
executed by an authorized representative of each party. No failure by either
party to enforce any right(s) hereunder shall constitute a waiver of such
right(s).
|
5.8
|
Relationship
of the Parties.
The relationship between Customer and APEX shall not be that of
partners, agents, or joint venturers for one another, and nothing
contained in this Agreement shall be deemed to constitute a partnership or
agency agreement between them for any
purposes.
|
|
5.9
|
Counterparts. This Agreement may be
executed in one or more counterparts, all of which taken together shall
constitute one and the same instrument. Facsimile signatures shall be
sufficient to bind the parties to this Agreement.
|
|
APEX
Telecom Inc (“APEX”)
|
Apextalk,
Inc.
|
|||
|
By
|
/s/ Hong Wory
|
By
|
/s/
Xxxx Xxx
|
|
| Name | Hong Wory | Name | Xxxx Xxx | |
| Title | CEO | Title | CEO | |
-4-
