MASTER SERVICES AGREEMENT
This Master Services Agreement (the “Agreement”) shall govern all products and services provided to the Clients we server with Service Level Agreements (SLAs). This does not govern our residential customers who have not asked for and signed a product and/or labor based SLA.
Additional terms, such as the products, services and deliverables to be provided hereunder, the schedule for the delivery thereof and the amount of fees payable therefor are set forth in the attached Service Level Agreement (the “SLA”) which is hereby incorporated by this reference and may, from time to time, be amended upon the written consent of both parties. Additional SLAs generated for additional work during this contract term will also be subject to this Master Service Agreement. In the event of any conflict between the terms of any SLA and the terms of this Agreement, the terms of the SLA shall control.
1. Term & Termination.
1.01 Initial Term. Subject to any termination rights in this Agreement, the initial term for each subscribed Product and Service will commence and end on the dates indicated in the applicable SLA.
1.02 Renewal Term. Upon expiration of the Term, this Agreement automatically renews for additional successive 12-month terms unless and until either Party provides written notice of nonrenewal at least 30 days prior to the end of the then-current term. If the Term is renewed for any Renewal Term(s), the terms and conditions of this Agreement during each such Renewal Term are the same as the terms in effect immediately prior to such renewal, subject to any change in Prices payable for the Products and Services, and payment terms during the applicable Renewal Term. In the event either Party provides timely notice of its intent not to renew this Agreement, then, unless earlier terminated in accordance with its terms, this Agreement terminates on the expiration of the then-current Term.
1.03 Termination. Following the Initial Term, either Party may terminate this Agreement without cause and for any reason with ninety (90) days prior written notice to the other Party.
2.01 Payment Terms. Rock Island will issue a separate invoice for each SLA entered into hereunder. All invoicing for products and services are due upon receipt. Any and all invoiced amounts are considered late if outstanding after 30 days after issue by Rock Island. For Services billed in arrears, any payment not received within 30 days of the invoice date will accrue interest at a rate of 1 ½% per month, or the highest rate allowed by applicable law, whichever is less.
Payments may be sent to:
Island Network, LLC
PO Box 1130
Friday Harbor, WA 98250
Note: Electronic payment may be set up by calling (360) 378-5884, option 2
2.02 Invoice Disputes. If Client has a dispute over the amount of any charges for the Products or Services, Client will nevertheless pay all undisputed amounts. Client will notify Rock Island in writing of any dispute with any invoice (along with a reasonably detailed description of the dispute) within 15 days from Client’s receipt of such invoice. Client will be deemed to have accepted all invoices for which Rock Island does not receive timely written notification of disputes. The Parties will cooperate in good faith and seek to resolve all such disputes expeditiously.
2.03 Late Payments. Payments outstanding 30 days after issue by Rock Island may be subject to termination of service and collections processes, at the discretion of Rock Island.
2.04 When Service commence on a day other than the first day of the month, the charge for that month shall be determined by prorating the monthly payment by the number of days during which Services are provided.
3. Confidential Information.
3.01 “Confidential Information” means the information of either Party (the “Disclosing Party”) which is disclosed to the other Party (the “Receiving Party”) pursuant to this Agreement that is in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature, or if disclosed orally, noted as confidential at the time of disclosure. Confidential Information will include, but not be limited to, trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, schematics, designs, contracts, financial information, and non-public business information. Each Receiving Party agrees that it will use and reproduce the Confidential Information of the Disclosing Party only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes and will restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know and will not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations will be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care.
3.02 Rock Island Office Locations:
Rock Island Communications
345 Court Street
Friday Harbor, WA 98250 Orcas Island
Rock Island Communications
208 Enchanted Forest
Eastsound, WA 98245
3.03 Rock Island Mailing Address:
Rock Island Communications
PO Box 1130
Friday Harbor, WA 98250
4. Representations and Warranties.
4.01 Client’s Representations and Warranties. Client represents and warrants to Rock Island that:
(a) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;
(b) the execution of this Agreement by its Representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party;
(c) it is in material compliance with all applicable Laws relating to this Agreement, the Products, Services and the operation of its business.
4.02 Rock Island’s Representations and Warranties. Rock Island represents and warrants to Client that:
(a) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement, except where the failure to be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability to perform its obligations under this Agreement;
(b) it has the full right, corporate power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;
(c) the execution of this Agreement by its Representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Part.
EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND ANY SLA ASSOCIATED WITH THIS AGREEMENT ROCK ISLAND MAKES NO WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE INSTALLATION, DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF ANY PORTION OF THE NETWORK, THE PRODUCT OR ANY SERVICE PROVIDED HEREUNDER OR DESCRIBED HEREIN, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED.
5. Client Responsibilities.
5.01 Client will provide reasonable and timely access to Client’s premises, equipment and staff as requested by Rock Island in providing Client requested Products and Services. Client will test to its satisfaction all deliverables for functionality and fitness for intended purpose prior to putting new technology into service. Rock Island makes no warranty or representations regarding the selection of any software or hardware incorporated into its equipment by Client.
6.01 Client will obtain, maintain, and comply with all applicable third-party licenses and terms and conditions, which shall exclusively govern the use of such third-party technology, including any such licenses incorporated into the Products and Services. Any limitations, exclusions, or restrictions therein shall apply to the Products and or Services delivered under this contract.
7. Intellectual Property Rights.
7.01 Ownership. Each Party retains all right, title and interest in and to its own pre-existing or separately developed Intellectual Property Rights. Rock Island reserves all rights and grants Client no licenses of any kind hereunder. All information, including but not limited to feedback or suggestions, provided to Rock Island with respect to the Products and Services, will be deemed Confidential Information.
7.02 Trademarks/Branding. Except as expressly provided herein, Client and Rock Island will not use the Trademarks of the other Party without the prior written consent.
8. Limitation of Liability.
8.01 No Liability for Consequential or Indirect Damages. The total liability of Rock Island to Client in connection with this Agreement, for any and all causes of actions and claims, including, without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation and other torts, shall be limited to the amount paid for the Service by Client to Rock Island under this Agreement for the one month period prior to accrual of the most recent cause of action. IN NO EVENT SHALL ROCK ISLAND BE LIABLE FOR SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUE, PROFITS OR OTHER BENEFIT WHETHER BY TORT, CONTRACT, OR OTHERWISE.
8.02 Assumption of Risk. Except as provided in Section 5, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLIENT ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY ROCK ISLAND, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS.
9. Indemnity. Client agrees to indemnify, defend and hold harmless Rock Island and its partners, officers, directors, employees, agents and other representatives of Rock Island from all losses or damages arising from Client’s breach of this Agreement, violation of any third party intellectual property right, all claims of any kind by Client, or any act or omission of Client in connection with any Products and Services provided hereunder. Rock Island agrees to indemnify, defend and hold harmless Client from all losses or damages arising from or related to personal injury or property damages caused by the negligence or willful misconduct of Rock Island.
10. Termination of Service by Rock Island. Rock Island may terminate Service under this Agreement or any SLA hereunder, or suspend Services, with prior written notice, upon (a) failure of Client to pay any amounts as provided herein within 30 days of invoice date; or (b) Client’s breach of any provision of this Agreement or any law, rule or regulation governing the Services; or (c) if Client provides false information to Rock Island regarding Client’s identity, creditworthiness, or its planned use of the Services; or (d) if Rock Island deems it necessary to take any reasonable and lawful action to protect the property and rights of Rock Island, and existing and potential Clients of Rock Island’s’ communication services. With respect to a termination pursuant to clause (a) of this Section, such termination of Services may not occur until after Rock Island has given Client written notice of failure to pay and Client has failed to cure such failure to pay within 10 days of the date of such written notice.
11. Termination for Cause. Either party may terminate this Agreement for Cause. “Cause” shall mean a breach by a party of any material provision of this Agreement, provided that written notice of the breach has been given to the breaching party by the non-breaching party, and the breach has not been cured within 30 days after delivery of such notice.
12. Early Termination Charges. If: (a) Client terminates any SLA hereunder for reasons other than Cause; or (b) Rock Island terminates any Service Order hereunder pursuant to Sections 11, and 12, then Client will pay, within 30 days after such termination, the following amounts: (i) all accrued but unpaid charges incurred through the date of such termination; plus (ii) an amount equal to 50% of the monthly fees for the remainder of the initial term of each subscribed Service. If Client desires to cancel a Service Order, the following shall apply: (i) when a Service requiring design work is canceled after the design work has begun, Rock Island may collect charges equal to the cost incurred for the associated design work time and materials to date; and (ii) if cancellation is requested at anytime during installation, it will be treated as an early termination of Service , and Client shall pay all accrued but unpaid charges, and 25% of the monthly fees for the remainder of the initial term of each subscribed Service.
13.01 Entire Agreement. This Agreement, including all related exhibits, together with the Basic Purchase Order Terms, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Client acknowledges that except for the representations and warranties contained in Section 5 and the limited product warranty contained in Section ., neither Rock Island, its employees, agents or contractors have made or make any express or implied representation or warranty, either written or oral, on behalf of Rock Island, including any representation or warranty arising from statute or otherwise in law.
13.02 Governing Law and Jurisdiction. This Agreement is governed and interpreted in accordance with the laws of the state of Washington. The Parties consent to the exclusive jurisdiction of, and venue in, San Juan County, Washington.
13.03 Assignment. Neither Party will assign, delegate, or otherwise transfer its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other Party (to be granted or withheld in its reasonable discretion); except that Rock Island may assign this Agreement in connection with a merger, acquisition, sale of substantially all of its assets or stock, financing, reorganization, or similar transaction. This Agreement will inure to the benefit of the Parties and their permitted successors and assigns.
13.04 Modification and Waiver. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, by either Party will be effective unless in writing. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
13.05 Severability. If any of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable under any applicable Law, it will be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions will continue in full force and effect.
13.06 Arbitration: Any dispute involving an amount less than $75,000 between Rock Island and Client shall be subject to mandatory arbitration through the American Arbitration Association, Seattle offices, utilizing its rules and procedures provided for arbitration of Commercial disputes. The expense of such arbitration itself shall be borne equally by the parties; however, each party shall pay for its own cost for experts, evidence and consultant fees. The decision rendered by the arbitrator shall be final and conclusive, and a judgment thereon may be entered into the highest court of the forum so having jurisdiction of the matter. If the amount in dispute is equal to, or exceeds, $75,000, the parties may arbitrate, if they mutually agree to do so, or either party may pursue any other legal or equitable remedy in any court of competent jurisdiction.
13.07 Attorney Fees: In the event of any dispute at arbitration or in litigation under this Agreement, the prevailing party is entitled to reimbursement of its costs and attorneys’ fees (whether incurred at arbitration, at trial or on appeal) from the other party.