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EXHIBIT 10.14
MASTER SERVICE AGREEMENT
Confidential
MSA No: WNA-1
This MASTER SERVICE AGREEMENT between the below-named Customer and MFS Datanet,
Inc. ("MFSDN") (collectively referred to as the "Parties") establishes the
terms and conditions under which MFSDN will provide communications services to
Customer.
Customer: World Net Access, Inc.
State of Incorporation: Colorado
Principal Place of Business: Address for Notices:
0000 Xxxxxxxx, Xxxxx 0000 1999 Broadway, Suite 2100
Xxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx
MFSDN: MFS Datanet, Inc.
State of Incorporation: Delaware
Principal Place of Business: Address for Notices:
00 X. Xxxxxx Xx., Xxxxx 0000 00 X. Xxxxxx Xx., Xxxxx 0000
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Contract Administration
1. The Parties anticipate that Customer may, at Customer's sole discretion,
issue one or more Data Service Orders ("Service Orders") describing certain
services which Customer desires to purchase from MFSDN, and which set forth the
prices, minimum term of service and other service specific details. All Service
Orders shall be subject to the terms and conditions of this Master Service
Agreement for the duration of the Service Order. If a Service Order is accepted
in writing by an authorized representative of MFSDN, it shall supersede any and
all prior agreements or understandings with respect to the service described
therein, and shall comprise the full and final Agreement of the Parties. No
term or condition hereof shall be modified except by written agreement of both
Parties and any preprinted terms and conditions which may appear on Customer's
order form are expressly rejected and are void. As used in this document, the
word "Term" shall mean the total duration of a Service Order and the phrase
"Initial Term" shall mean the minimum term of service as specified in a Service
Order. The word "Agreement" shall apply to all promises, terms and conditions
of the Parties contained in this Master Service Agreement or a Service Order.
2. The Initial Term of this Agreement shall be as set forth in the Service
Order placed hereunder and shall extend thereafter until terminated by either
Party upon no less than ninety (90) days' prior written notice. However, MFSDN
may terminate this Agreement or suspend service hereunder at any time upon: (a)
any failure of Customer to pay any undisputed amounts as provided in this
Agreement; (b) any breach by Customer of any material provision of this
Agreement continuing for thirty (30) days after receipt of notice thereof; (c)
any insolvency, bankruptcy, assignment for the benefit of creditors,
appointment of a trustee or receiver or similar event with respect to Customer;
or (d) any governmental prohibition or required alteration of services to be
provided hereunder or any violation of an applicable law, rule or regulation.
Any
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termination shall not relieve Customer of its obligation to pay any charges
incurred hereunder prior to such termination. The Parties' rights and
obligations which by their nature would extend beyond the termination,
cancellation or expiration of this Agreement shall survive such termination,
cancellation or expiration.
3. Customer is responsible for all Recurring and Non-Recurring Charges from and
after the Date of Acceptance. For purposes of this Agreement, the Date of
Acceptance is the earlier of 1) date Customer signs a Customer Acceptance
Letter or 2) two (2) business days after MFSDN establishes a connection in
which the MFSDN provided service is functioning properly. Recurring Charges
will be prorated for the first and last month of the Agreement if service is
not provided for a complete month. Proration of monthly charge will be based on
number of days connection was available divided by total days in the month.
MFSDN's targeted service installation intervals are thirty (30) days after
order acceptance for on-net services and forty-five (45) days for off-net
services. In the event Customer requests MFSDN to attempt to accelerate the
order process to install services more quickly, Customer shall pay an Order
Expedite charge of $500. Order Expedite charges will apply to each site
ordered for which expedited installation is requested.
4. During the Term Customer shall pay MFSDN for services at the rates set forth
in the Service Order. MFSDN shall not increase pricing during the Initial Term,
but thereafter MFSDN may increase pricing upon ninety (90) days' written
notice. Normal service charges shall be invoiced monthly in advance. All
amounts owed by Customer thereunder shall be paid within thirty days after the
date of the invoice and MFSDN reserves the right to charge interest on all
delinquent payments at an annualized rate of 2 percentage points above the
prime rate as announced in the Wall Street Journal from time to time.
5. MFSDN's xxxx shall separately identify any excise, sales, use, or other
taxes applicable to MFSDN's provision of service or equipment to Customer, and
all such taxes, however designated (excepting those based on MFSDN's net
income), shall be paid by Customer in addition to any other amount owing. MFSDN
will not collect any otherwise applicable tax if Customer first provides MFSDN
with a valid tax exemption certificate.
6. At Customer's request, MFSDN will respond to Customer's report of service
interruption and attempt to resolve all problems of connectivity. MFSDN'S
targeted Mean Time to Repair (MTTR) for any major failure or malfunction of the
service (defined as any loss of connectivity between two sites) is two (2)
hours for On-Net sites. For Off-Net sites, the targeted MTTR is four (4) hours
for any MFSDN provided equipment and service and the length of time committed
to by the provider for the local loop circuit. MFSDN'S targeted response time
for any other defect or non-conformity is within four (4) hours of such
request, or such later time as may result from delays requested by CUSTOMER to
schedule the remedial activities so as to minimize disruptions to CUSTOMER'S
business operations. If it is determined that all facilities, systems and
equipment furnished by MFSDN are functioning property, and that the
connectivity problem arose from some other cause, MFSDN will recover labor and
materials cost for services actually performed at the following rates, which
shall be the usual and customary rates for similar services provided by MFSDN
to all customers in the same locality.
Labor (4 hour Minimum Charge):
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7 a.m. to 7 p.m. week days/$150.00 per hour per Technician
All other times: $225 per hour per Technician
Materials: Cost to MFSDN x 1.15
MFSDN reserves the right to modify the above rates upon ninety (90) days'
advance written notice to Customer provided such rates remain MFSDN's usual and
customary rates for similar services provided by MFSDN to all customers in the
same locality.
7. MFSDN may substitute, change or rearrange any equipment, facility or system
used in providing services at any time and from time to time, but shall not
thereby alter the technical parameters of the services provided thereunder or
cause unreasonable interruption in services being provided to Customer.
8. Customer shall not cause or allow any facility or equipment of MFSDN to be
rearranged, moved, removed, disconnected, altered, or repaired without MFSDN's
prior written consent, which consent shall not be unreasonably withheld.
Customer shall not create or allow any liens or other encumbrances to be placed
on any MFSDN equipment facility or system arising from any act, transaction or
circumstance relating to Customer. If Customer elects to relocate or otherwise
change the place of services after commencement of the installation of
facilities, Customer shall pay any disconnection, early cancellation or
termination charges reasonably incurred by MFSDN for the original location and
installation charges for the new location.
9. MFSDN will grant a credit allowance for service interruption calculated and
credited in fifteen (15) minute increments. A service interruption will be
deemed to have occurred only if service becomes unusable to Customer as a
result of failure of MFSDN's facility, equipment, or personnel used to provide
the service in question, and only where the interruption is not the result of:
(i) the negligence or acts of Customer or its agents; (ii) the failure or
malfunction of equipment or systems not provided by MFSDN as a component of the
service; or (iii) a service interruption caused by scheduled service
maintenance, alteration, or implementation of which Customer is Provided at
least forty eight (48) hours advance notice. Such credits will be granted only
if; (a) Customer affords MFSDN full and free access to Customer's premises to
make appropriate repairs, maintenance, testing, etc.; and (b) Customer does not
unreasonably continue to use the service on an impaired basis.
For purposes of canceling or terminating a service provided under this
Agreement for a MFSDN service interruption, such service interruption must
equal either twenty four (24) hours of cumulative service outages during any
continuous twelve (12) month period or a single outage of eight (8) hours or
more.
The foregoing states Customer's sole remedy for service interruption under the
Agreement, and in no event shall MFSDN be liable for harm to business, lost
revenues, lost savings, or lost profits suffered by Customer, regardless of the
form of action, whether in contract, warranty, strict liability, or tort,
including without limitation negligence of any kind, whether active or passive.
10. MFSDN's entire liability for any claim, loss, damage or expense from any
cause whatsoever shall in no event exceed sums actually paid to MFSDN by
Customer for the specific service
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giving rise to the claim. Notwithstanding the foregoing, neither MFSDN or
Customer shall be liable for any indirect, incidental, consequential, punitive
or special damages. No action or proceeding against MFSDN shall be commenced
more than one (1) year after service is rendered.
11. There are no warranties, representations or agreements, expressed or implied
either in fact or by operation of law, statutory or otherwise, including
warranties of merchantability or fitness for a particular purpose, except those
expressly set forth herein.
12. In the event that Customer cancels or terminates service at any time during
the Initial Tenn of this Agreement or any renewal thereof for any reason
whatsoever other than a service interruption (as defined in Paragraph 9 above),
Customer agrees to pay MFSDN liquidated damages (which shall not be deemed a
penalty) the following sums which shall become due and owing as of the effective
date of cancellation or termination and be payable in accordance with Paragraph
3 above: 1) all Non-Recurring charges specified in the Service Order and
reasonably expended by MFSDN to establish service to Customer; plus 2) any
disconnection, early cancellation or termination charges reasonably incurred by
MFSDN; plus 3) an amount equal to the difference between the total charges paid
for such service at the rates cited in the Service Order and an amount equal to
the charges that would have otherwise been due for that service at the next
shortest term of service normally offered by MFSDN and for which Customer would
have otherwise qualified, given the actual period of time that Customer has
maintained the service.
For example, a service ordered for an Initial Term of twenty four months which
is canceled in the fourteenth month would result in charges equal to the
difference between the amount paid by Customer for service during the fourteen
month effective term of service and MFSDN's standard rates for such services
under an agreement with a one year Initial Term. MFSDN offers services under
one, three, and five year terms. The minimum term of service offered by MFSDN is
one year. Liquidated damages for a termination prior to completion of at least
twelve months of service would be the difference between the cumulative amount
paid under the Service Order and an amount equal to twelve months of service at
the rate applicable to service provided under a one year term of service.
13. Customer shall allow MFSDN continuous access and right-of-way to Customer's
premises to the extent reasonably determined by MFSDN to be appropriate to the
provision and maintenance of services, equipment, facilities, and systems
hereunder. Customer shall furnish MFSDN, at no charge, such equipment space and
electrical power as is reasonably determined by MFSDN to be required and
suitable to render services hereunder.
14. Customer shall be liable for any damages to MFSDN equipment, facility, and
system which is caused by: (a) negligent or willful acts or omissions of
Customer; or (b) malfunction or failure of any equipment or facility provided by
Customer or its agents, employees or suppliers. Customer is responsible for
identifying, monitoring, removing and disposing of any existing hazardous
materials (e.g., friable asbestos) prior to any construction or installation
work being performed by MFSDN and Customer shall indemnify, defend, and hold
MFSDN harmless from any claim, suit, loss, cost, or expense, including fines,
abatement charges, legal fees and court costs incurred in connection with
hazardous materials on Customer's premises.
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15. Neither Party may assign this Agreement without the express written consent
of the other Party, which consent shall not be unreasonable withheld, except
that either Party may assign its rights and obligations hereunder (a) to any
subsidiary, parent company, or affiliate of that Party; (b) pursuant to any
sale or transfer of substantially all of the business of that Party; or (c)
pursuant to any financing, merger, or reorganization of that Party.
If, however, any assignment by Customer permitted under the proceeding sentence
should cause MFSDN reasonable concern that the assignee possesses insufficient
financial resources to perform all the obligations hereunder, the assignee
shall be required to deposit with MFSDN an irrevocable unconditional letter of
credit, or other acceptable form of security, in an amount sufficient to
insure the obligations of the assignee.
16. If any provision of this Agreement is held by a court to be invalid, void
or unenforceable, the remainder of this Agreement shall nevertheless remain
unimpaired and in effect.
17. No license, joint venture or partnership, express or implied, is granted by
MFSDN pursuant to this Agreement.
18. Each Party agrees to maintain in strict confidence all plans, designs,
drawings, trade secrets, and other proprietary information of the other Party
which is disclosed pursuant to this Agreement. No obligation of confidentiality
shall apply to disclosed information which the recipient 1) already possessed
without obligation of confidentiality; 2) develops independently; or 3)
rightfully receives without obligation of confidentiality from a third party.
19. Neither Party shall be liable for any delay or failure in performance of
any part of this Agreement to the extent such delay or failure is caused by an
event of Force Majeure, including but not limited to, fire, flood explosion,
accident, war, strike, embargo, governmental requirement, civil or military
authority, Act of God, inability to secure materials, labor or transportation,
acts or omissions of common carrier or warehouseman, or any other causes beyond
their reasonable control. Any such delay or failure shall suspend the Agreement
until the Force Majeure condition ceases and the Term shall be extended by
the length of the suspension.
20. If this Agreement is entered into by more than one Customer, each is
jointly and severally liable for all agreements, covenants and obligations
herein.
21. This Agreement shall be governed by the laws of the State of California
without regard to its choice of law provisions. In any action between the
Parties to enforce any material provision of this Agreement, the prevailing
Party shall be entitled to recover its legal fees and court costs from the
non-prevailing Party in addition to whatever other relief a court may award.
22. Each person executing this Agreement on behalf of MFSDN or Customer
represents and warrants that he or she has been fully empowered to do so, and
that all necessary corporate actions (if any) required for the execution of
agreements have been taken.
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MFSDN: Customer:
By: [ILLEGIBLE] By: /s/ XXX X. XXXXXX
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Title: Executive Vice President Title: VP, Network Operations
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Date: 8/23/96 Date: 8/9/96
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