EXHIBIT 10.1
MASTER SERVICE AGREEMENT
This Agreement made this 2nd day of Feb. in the year 1998 by and
between Electric Lightwave, Inc. ("XXX"), a Delaware corporation and Utah
Webworks, Inc. ("Customer").
WHEREAS, XXX is duly authorized to provide telecommunications services
and facilities and;
WHEREAS, Customer wishes to purchase such services as set forth herein.
NOW, THEREFORE, it is agreed that service will be provided pursuant to
ELI's Interstate Tariff No. 1 and any subsequent tariffs on file with the
Federal Communications Commission for interstate services, or pursuant to tariff
or price list, if applicable, for intrastate services and it is further agreed
as follows:
1. SERVICES.
During the Term of this Agreement, XXX will provide Customer the
specific services identified on the Sales Order(s).
2. TERM AND TERMINATION.
(a) Attached hereto and incorporated herein are Sales Orders containing
details applicable to the telecommunications services and facilities ("the
Services") to be provided under this Agreement. Additional Sales Orders may be
prepared by XXX and when executed, shall be binding upon Customer and XXX and
shall be deemed a part of this Agreement. Each Sales Order shall also set forth,
the respective requested service, the mutually agreed to service date ("Service
Date"), the term of service applicable thereto ("Term") the recurring (monthly
and/or non-recurring (provisioning or other) charges.
(b) Customer must provide XXX with thirty (30) days prior written
notice to terminate service. Termination of service for billing purposes is
effective upon the end of the thirty (30) day notice period and not upon
notification. If Customer cancels a Sales Order or terminates service before
completion of the Term of Service specified in the Sales Order(s), Customer
agrees to pay XXX all costs, fees and expenses reasonably incurred in connection
with pending Sales orders or customer specific special construction.
(c) Customer is liable for termination charges up to a maximum amount
equal to the total charges applicable for the remaining term as specified in the
Sales Order(s).
(d) XXX may terminate the Agreement immediately if (a) Customer commits
a material breach of any provision of this Agreement; (b) Customer makes an
assignment for the benefit of creditors, or any petition or proceeding is filed
against customer under any law relating to creditor's rights generally; or (c)
Customer fails to pay invoices within thirty (30) days of the date of invoice.
3. PAYMENTS.
During the Term of this Agreement and subject to either Tariff or
contract limits, if applicable, Customer shall pay XXX for services as set forth
in the Sales Order(s).
Billing for services begins when customer has been notified of
end-to-end connectivity on the facility provided by XXX. Failure of customer to
provide customer-owned or leased equipment at time of notification by XXX of
end-to-end connectivity does not preclude billing by XXX for services rendered
under this Agreement.
Charges shall be invoiced monthly and payment shall be due upon
receipt. Customer will pay all sales and use taxes, as well as duties or levies,
arising in connection with the services. The first xxxx will include monthly
charges pro-rated for the first 30 days, applicable installation charges and
taxes, if any. (Some cities impose franchise fees for certain categories of
services which if applicable, will be charged to Customer as "Additional Fees.")
At the expiration of the initial Term specified in each Sales Order,
this Agreement shall continue in effect with respect to the Services specified
therein on a month to month basis until terminated by either party upon thirty
(30) days prior written notice.
A monthly interest charge will be applied to delinquent amounts over
thirty (30) days. Customer's payment obligation to XXX is not contingent on the
performance of any third party. Customer's failure to make payment in full
within 30 days of invoice shall constitute a material breach of this Agreement.
XXX will have the option of temporarily suspending services to Customer until
such time as satisfactory payment is made or immediately terminating this
Agreement and pursuing any remedy available at law or in equity.
4. SERVICE CALL CHARGES.
XXX may charge Customer for service calls (if service problem is
determined not to be the fault of XXX) at the rates generally charged by XXX to
its customers.
5. LIABILITY.
Neither XXX nor its affiliates, agents, officers, directors or
employees shall be liable to Customer for indirect, incidental, special,
consequential damages (including, but not limited to any claim from any client,
or customer of Customer for loss of services, lost profits or lost revenues)
arising under and in connection with this Agreement, or the performance
thereunder, from any breach of partial breach of the provisions of this
Agreement or arising out of any act or omission by XXX, its employees, servants
or agents whether based on breach of warranty, negligence or any other theory of
liability.
ELI's liability arising out of delays in construction or installation
under this Agreement, or out of mistakes, accidents, omissions, errors or
defects in transmission in the provision of service hereunder shall in no event
exceed the amount paid to XXX for service for the period of time of the failure
rendered under this Agreement.
6. EXCUSABLE DELAY.
XXX will be excused from delays or failures in performance, caused by
force majeure conditions including but not limited to the following: (I) Acts of
God, including fire, earthquake, volcanic action and flood, (II) War, civil
disturbances and civil or military authority and (III) services provided by
others as part of total service provided by XXX. Customer will receive service
interruption credits pursuant to Section 7 of this Agreement during a service
interruption caused by a force majeure event.
7. INTERRUPTION OF SERVICE.
In the event of any interruption of service through no fault of XXX,
unless such interruption is caused by ELI's willful misconduct or gross
negligence, ELI's sole obligation shall be to provide credit on a pro rata basis
against Customer's obligation to make payments pursuant to Section 2 hereof.
XXX reserves the right to suspend service without notice to Customer
for a non service affecting Planned Service Outage caused by scheduled
maintenance or planned enhancements or upgrades to the network of thirty (30)
seconds or less. XXX reserves the right to suspend service with at least
twenty-four (24) hours notice to Customer for a Planned Service Outage caused by
scheduled maintenance or planned enhancements or upgrades to the network of over
thirty (30) seconds. Such Planned Service Outages shall occur between 12:00 AM
and 6:00 AM on weekends only. XXX shall make all reasonable efforts to
accommodate Customer in regard to the timing of Planned Service Outages,
however, XXX reserves the right to proceed with Planned Service Outages in the
event Customer objects to the timing of such outages. A Planned Service Outage
will not be considered an out-of-service condition provided service is restored
by the end of the time stated therein. A Planned Service Outage shall not be
considered an out-of-service condition provided service is restored by the end
of the period specified in the notice.
8. WARRANTY.
OTHER THAN AS EXPRESSED IN THIS AGREEMENT, OR IN ELI'S TARIFF OR PRICE
LIST, THERE ARE NO WARRANTIES, REPRESENTATIONS OR AGREEMENTS, EXPRESSED OR
IMPLIED EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING
WARRANTIES OR MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE, EXCEPT THOSE
EXPRESSLY SET FORTH HEREIN.
9. RESPONSIBILITIES OF THE CUSTOMER.
The Customer shall:
a) arrange for disconnection of existing service if applicable;
b) notify long distance carrier of intent to do business with XXX and
place appropriate orders with such carrier, if applicable;
c) schedule a complete site survey with XXX, if deemed necessary by
XXX;
d) mutually agree with XXX on location for XXX equipment;
e) mutually agree with XXX on network interface;
f) provide to XXX all technical information necessary to install
service;
g) provide an equipment technician on-site throughout installation if
required;
h) verify ELI's completion of installation and testing and accept
service within two days of written notification by XXX that service has been
provisioned.
10. STATE REGULATION.
If the Service is provided solely within a single state in a manner
which subjects the Service to regulation by such state then the terms and
conditions of such Service and this Agreement shall be subject to such
regulations and to any addendum to this Agreement relating thereto agreed upon
by XXX and Customer.
11. EQUIPMENT OR SOFTWARE NOT PROVIDED BY XXX.
(a) Except as otherwise agreed to by the parties, XXX shall not be
responsible for the provision and installation of equipment or software not
provided by XXX; nor shall XXX be responsible for the transmission or reception
of information by equipment or software not provided by XXX.
(b) It is expressly understood that Customer shall be responsible for
the use and compatibility of equipment or software not provided by XXX. In the
event that Customer uses equipment or software not provided by XXX which impairs
Customer's use of the Service(s), Customer shall nonetheless be liable for
payment for the Service(s).
(c) Services provided will meet or exceed industry standard for similar
services and failure by customer to order or specify correct service shall not
release customer from charges incurred to install an order.
12. GOVERNING LAW.
This Agreement shall be governed by the laws of the state of Utah.
13. ENTIRE AGREEMENT.
This Agreement, together with the attached Sales Order(s) and any
Addendum(s) and ELI's Tariff or Price List on file with the Federal
Communications Commission or appropriate state utility commission, if
applicable, which is incorporated by reference and made a part hereof, sets
forth the entire Agreement of the parties with respect to the subject matter
hereof, and supersedes any prior agreement or understanding. If any provision
hereof is held by a court to be invalid, void or unenforceable, the remainder of
the Agreement shall nevertheless remain unimpaired and in effect. To the extent
of a conflict between or among any provisions of this Agreement, the attached
Sales Order and/or Tariff/Price List, the provisions of this Agreement will
control.
14. DEPOSITS.
XXX may require the Customer, prior to or during the provision of
service pursuant to this Agreement, to tender a deposit in an amount to be
determined by XXX in its reasonable discretion to be held by XXX as a guarantee
for the payment of charges. To determine the financial responsibility of
Customer and/or the specific amount of any deposit required, XXX may rely upon
commercially reasonable factors to assess and manage the risk of non-payment,
including but not limited to payment history for telecommunications service,
number of years in business, bankruptcy or insolvency history, financial
statement analysis and commercial credit bureau rating.
It shall be Customer's responsibility to provide to XXX upon request
such information as is necessary for XXX to determine the financial
responsibility of Customer, including but not limited to Customer's tax returns,
audited and unaudited financial statements and loan application. A deposit does
not relieve Customer of the responsibility for the prompt payment of bills upon
presentation. The failure of Customer to post a deposit as required by XXX
pursuant to this paragraph shall constitute a material breach of this Agreement
by Customer which shall entitle XXX to terminate this Agreement and the service
provided hereunder upon five (5) days written notice to Customer. When the
service for which the deposit has been required is discontinued, the deposit
will be applied to the final xxxx and any credit balance will be refunded to the
Customer.
15. ARBITRATION.
(a) Any dispute arising out of or related to this Agreement, which
cannot be resolved by negotiation, shall be settled by binding arbitration in
accordance with the rules of the American Arbitration Association. The costs of
arbitration, including the fees and expenses of the arbitrator, shall be shared
equally by the parties unless the arbitration award provides otherwise. The
arbitrator shall have no power or authority to make awards or issue orders of
any kind except as expressly permitted by the Agreement and in no event shall
the arbitrator have the authority to make any award that provides for punitive
or exemplary damages.
16. NONDISCLOSURE.
Customer shall not disclose to any third party during the term of
Service, any of the material terms and conditions set forth in this Agreement
(including but not limited to price-related terms), unless such disclosure is
lawfully required by any government agency or is otherwise required to be
disclosed by law.
17. ASSIGNMENT.
Neither this Agreement nor rights or obligations of the Customer shall be
transferable or assignable by Customer without ELI's prior written consent, such
consent not to be unreasonably withheld, provided however, either party may
assign and transfer this Agreement to any parent, subsidiary, successor or
affiliated company without the prior written consent of the other party.
Provided further, assignee of Customer may be required to render a deposit
pursuant to Section 14 of this Agreement if assignee does not meet credit
standards.
CUSTOMER ELECTRIC LIGHTWAVE, INC.
Print Name: Xxxxx Xxxxxx Representative: Xxxxx XxXxxx
Signature: /S/ Signature: /S/
--------------------- ------------------------
Title: President Title: Account Executive
Company: Utah WebWorks, Inc. Electric Lightwave
Date: 2/2/98 Date: 2/2/98
ELECTRIC LIGHTWAVE PRICING SHEET ATTACHED HERE
