Metatel Master Services Agreement
This Master Services Agreement (“Agreement”) sets forth the terms of Your agreement to purchase Services (“Service”) provided by Metatel Communications LLC (“MCL”) subject to the prices, quantities, terms and conditions set forth in Your Order Form (“Order” or “Order Form”) and governed by the terms and conditions contained in this Agreement. As used herein, (“Customer”, “You”, and “Your”) refers to the customer.
MCL owns all rights, title and interest in MCL trade names, Service marks, inventions, copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of plans and of the hardware and software systems and resources necessary to provide Service to You, unless otherwise expressly stated in the Order Form. This Agreement does not constitute a license to You to use MCL’s Logo, trade names, or service marks. Notwithstanding the foregoing, You consent to MCL’s use of Your trademark and/or logo MCL’s purpose of displaying You as a customer or vendor of Company to the public. If MCL providers software or operating system licenses to You, You agree to accept the terms and conditions of any license provided to You from a third party, as it relates to the Service.
Fees and Service charges are on the Order Form and do not include applicable Taxes and regulatory fees unless so indicated. New services or upgrades/relocations will result in additional fees/charges. If a prior Service location remains installed after a new Service location is installed, You will be responsible for Service charges for both Service locations until terminated as provided for each Service. In the event that MCL is required by a governmental authority to pay any tax on Your behalf, MCL will have the right to be reimbursed by You for such amount. You must reimburse MCL within 30 days of written notice that a tax has been paid on Your behalf by MCL.
Term and Termination.
MCL may reject any Order Form at its discretion. This Agreement will remain in full force and effect for the term as specified on Your Order Form, beginning on the Date of MCL’s acceptance (the “Initial Term”), and will apply to all future services provided by MCL. At the end of the Initial Term, this Agreement will automatically renew for a successive period equal in length to the Initial Term (the “Renewal Term”) unless you provide MCL with written notice of Your intent not to renew the Services at least 90 days prior to the expiration of the Initial Term. At the end of any Renewal Term or Additional Renewal Term, this Agreement will automatically renew for a successive period equal in length to the original Renewal Term (an “Additional Renewal Term”) unless you provide MCL with written notice of Your Intent not to renew the Services at Least 90 days prior to the expiration of the then current Renewal Term, or Additional Renewal Term, as the case may be. In no event may You terminate this Agreement prior to the expiration of the then current Initial Term, Renewal Term or Additional Term absent “MCL Cause” as defined herein. In the event that you terminate this Agreement without MCL Cause prior to the expiration of the then current Initial Term, Renewal Term or Additional Term, as the case may be, You shall be liable to pay MCL an Early Termination Fee. For purposes of this Agreement, the Early Termination Fee shall be calculated as: i) 100% of your MRC for all Services covered by this Agreement multiplied by the remaining months in your then current Initial Term, Renewal Term or Additional Termination Term, as the case may be; plus ii) all costs incurred by MCL in processing the Service; plus iii) all provisioning related and/or installation-related costs incurred for the required equipment and facilities up to the date of termination (including without limitation any termination, cancellation or other charges that MCL may be required to pay to any third party as a result of the termination; plus iv) the amount of any NRC’s previously waived. As used herein, the term “MCL Cause” shall only occur in the event that MCL fails to perform a material obligation under this Agreement for more than 30 days after written notice and opportunity to cure are given by You to MCL. The parties agree that the Early Termination fee is a fair representation of the damages anticipated to be suffered by MCL in the event of an early termination by You and that the Early Termination Fee is not a penalty. In the event of termination, You will also be responsible for compensating MCL for all services provided by MCL to move your Service to another provider or to move Your data from MCL’s system to another system. Equipment provided to You by MCL shall be returned to MCL upon termination. In the event that You fail to return MCL’s equipment after 30 days from the date of termination, You will be required to compensate MCL for any such equipment retained by You. In the event of a material breach by MCL which is not covered by the SLA, You shall notify MCL in writing of their material breach and allow MCL 30 days to cure said material breach. In the event that MCL fails to cure a material breach upon the expiration of the required written notice, You may terminate this Agreement without penalty.
Currentness of Software and Operating Systems. Security and Internet Connection.
Unless stated otherwise in the Order, it is Your responsibility to install and maintain operating systems and software and to ensure that said operating systems and software are current and updated. It is Your responsibility to be informed about the latest software updates and to invest Your own financial and personal resources into the maintenance of software and operating system. All server and desktop software must be licensed and vendor-supported and Your environment must have current licensed, vendor-supported firewall between the internal network and the Internet. All wireless data traffic must be secured and where applicable, You must maintain adequate and reliable Internet and adequate switch infrastructure to support the Services.
Billing and Collection of Charges.
You will be billed by MCL for the Service, on a monthly basis, for the Monthly Recurring Charges (“MRCs”), Non-Recurring Charges (“NRCs”), and Hourly Services, as provided in the applicable Order Form, in advance. Subject to the terms of Your Order Form, MCL reserves the right to adjust Your rates and charges for Hourly Services. All invoices are due and payable by the invoice due date. When billing is based on customer usage or hourly services, charges will be billed weekly or monthly for the preceding billing periods, depending on the type of Service ordered. When Service does not begin on the first day of the month, or end on the last day of the month, the charge for the fraction of the month in which Service was furnished will be calculated on a pro rata basis. Billing by MCL will begin on the Service Commencement Date or at the time of signing, as specified in the Order. Billing accrues through and includes the day that the Service is discontinued. Past due balances may be charged a minimum service fee of $35 plus 1.0% of the total outstanding amount. Declined credit cards will be charged a $10.00 declination fee. Accounts that are more than 30 days past due may have service discontinued for nonpayment. Accounts that have been discontinued for nonpayment are subject to a $100 reconnection fee and all equipment in the possession of MCL may be held as collateral for Your outstanding debt to MCL. If Your account has been turned over by MCL to an outside agent for collection, You agree to pay MCL a “Processing and Collection Fee” of not less than $50.
ALL PAYMENTS TO MCL ARE NON-REFUNDABLE. If You dispute a term or amount on an invoice, You must do so in writing within 60 days from the invoice date. Disputes must be sent in writing to email@example.com. You must pay an amount equal to the part of the bill that is not in dispute. Payment of the amount of the invoice not in dispute will not be deemed to constitute acceptance of the portion of the invoice that is in dispute. If You report a disputed charge to Your credit card company, and MCL later determines that it is a valid charge, You agree to compensate MCL for all reasonable damages incurred as a result of Your invalid dispute.
Transfers and Assignments.
You may not assign or transfer Your rights, passwords, or duties in connection with the Services provided by MCL without the prior written consent of MCL. All transfers of rights or duties herein, without the advanced permission in writing of MCL, shall be void and unenforceable as a matter of law. Limitation of Liability. MCL SHALL NOT BE LIABLE FOR ANY AND ALL: DIRECT OR INDIRECT, INCIDENTAL, GENERAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOSS OF INFORMATION KEPT ON A DRIVE OWNED OR MAINTAINED BY MCL, OR LOSS OF USE, EVEN IF CUSTOMER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, TO CUSTOMER FOR A BREACH OF THESE POLICIES, BREACH OF AN ORDER FORM, OR BREACH OF THE MSA BY MCL. IN THE EVENT OF A BREACH OF AN OBLIGATION BY MCL, CUSTOMER’S DAMAGES SHALL BE LIMITED TO A MAXIMUM OF THE AMOUNT ACTUALLY PAID BY CUSTOMER TO MCL IN THE THREE MONTHS PRECEDING THE BREACH BY MCL, BUT IN NO CASE SHALL CUSTOMER’S DAMAGES EXCEED $1,000. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, YOU AGREE TO ACCEPT THE SERVICE ON AN “AS-IS” NON-WARRANTABLE BASIS. MCL EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE REGARDING THE PROVIDING OF GOODS AND SERVICES TO YOU. YOU RECOGNIZE THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT SUBJECT TO MCL’S CONTROL. YOU AGREE THAT MCL SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF, INTERNET SERVICES BY NETWORK(S) OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO MCL’S CONTROL, OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF YOUR INFORMATION CARRIED ON SUCH NETWORKS OR INTERNET SERVICE PROVIDERS. MCL SHALL HAVE NO LIABILITY HEREUNDER FOR DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF CUSTOMER OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, AND ‘DENIAL OF SERVICE’ ATTACKS). MCL IS NOT LIABLE FOR ANY BREACH OF SECURITY ON YOUR NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. YOU AGREE THAT YOU WILL NOT HOLD MCL RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICES (INCLUDING THOSE WITH WHOM MCL MAY CONTRACT TO OPERATE THE SERVICES), OR HOLD A THIRD PARTY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, MCL IN CONNECTION WITH THE SERVICES. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT YOU WILL NOT HOLD MCL RESPONSIBLE FOR (A) THIRD PARTY CLAIMS AGAINST CUSTOMER FOR DAMAGES, (B) LOSS OF OR DAMAGE TO CUSTOMER’S RECORDS OR DATA OR SOFTWARE MAINTAINED OR STORED BY MCL, OR (C) LOSS OR DAMAGE TO CUSTOMER ASSOCIATED WITH THE INOPERABILITY OF CUSTOMER’S EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE SERVICES OF THE MCL NETWORK. YOU AGREE TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST MCL, AND WAIVE ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD PARTY TO THIS AGREEMENT.
Notices and Communications.
You must designate on Your Order Form a mailing address and e-mail address to which MCL may mail or deliver notices and other communications. All notices You send to MCL must be in writing, by registered mail, sent to: Metatel Communications LLC 38765 Mound Rd #102 Sterling Heights, MI 48310.
Service Level Agreement.
MCL will provide the Service to You in accordance with its standard Service Level Agreement (the “SLA”), as may be amended from time to time, as found on www.xxpert.com and which is incorporated by reference and made a part of this Agreement.
Acceptable User Policies.
In the event that You utilize the Service in a manner which is illegal, MCL may terminate Service for cause. Your Service will be governed by MCL’s Acceptable User Policies, which may be subject to change, as found on www.xxpert.com, and which is incorporated by reference and made a part of
During the term of this Agreement, a renewal term of this agreement, and for a period of two (2) years from the voluntary or involuntary termination of this Agreement, You shall not knowingly solicit, induce, or attempt to induce any past or current customers, clients, prospects, employees, attorney referrals, vendors and any other client, customer or referral contacts of MCL: (a) to cease doing business in whole or in part with or through MCL, or (b) to do business with any other person, firm, partnership, corporation, or other entity which performs services materially similar to or competitive with those provided by MCL. In the event of a breach of this clause, You agree that damages will be difficult to estimate and that MCL shall be entitled to seek injunctive, equitable relief to enforce this Agreement.
Applicable Law. Venue and Jurisdiction. Dispute Resolution.
This Agreement shall be interpreted under the laws of the State of Michigan. All parties consent to jurisdiction the state court sitting in Oakland County, Michigan, or the federal district court for the Eastern District of Michigan for all disputes arising from this Agreement. Notwithstanding the forgoing, any claim or dispute arising out of this Agreement may be if MCL gives a written notice to You of its election to cause such claim or dispute to be arbitrated (the “Arbitration Notice”). In the event that MCL gives the Arbitration Notice, You and MCL shall be bound to submit such claim or dispute to binding arbitration conducted in Oakland County, Michigan before a single arbitrator pursuant to the commercial rules of the American Arbitration Association, and with the arbitrator selected in accord with the commercial rules of the American Arbitration Association, and any award issued as a result of that arbitration shall be final and binding, and either You or MCL shall have the right to compel any court of competent jurisdiction in the State or federal courts in Michigan to enforce that award.
MCL promotes and advertises services for third-parties (“Merchants”) on www.xxpert.com and in person, from which You may purchase certain goods or services. You understand that MCL does not operate or control the products or services offered by Merchants and that MCL is not responsible for information provided to You by the Merchants. Merchants are responsible for all aspects of order processing, truth in advertising, fulfillment, billing, and customer service relating to the services and offers advertised and sold by Merchants. MCL is not a party to the transactions entered into between You and the Merchant and You agree that MCL will not be liable to You for any contract, promise, obligation, pledge, or other agreement entered into between You and the Merchants unless stated in an agreement signed by MCL.
Waiver. Conflict of Terms. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, the remaining provisions will nevertheless remain in full force and effect. One or more waivers of a breach of the terms and conditions of this Agreement shall not constitute a waiver of any future breach thereof. In the event of a conflict between the MSA and an Order, the Order shall control.
Statute of Limitations.
YOU AGREE THAT ANY CLAIM AGAINST MCL, WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE, MUST BE BROUGHT WITHIN 6 MONTHS OF THE DATE GIVING RISE TO THE CLAIM. Entire Agreement; Modifications.
This Agreement and Your Order Form set forth the entire Agreement and understanding between the parties and merges all prior discussion between them. This Agreement may not be modified except by the written consent of both parties.
Risk of Loss.
At all times, You will bear the risk of any loss, damage or destruction of Your assets, equipment or property provided or maintained by MCL, from: fire, water damage, theft or other casualty. You will be solely responsible for insuring Your property and filing insurance claims for losses associated therewith. If MCL is aware of loss or casualty to Your property, MCL will immediately notify You, stating the extent of loss or damage incurred and the cause, if known.
You agree to indemnify, defend, and hold MCL harmless, as well as its subsidiaries, affiliates, officers, directors, employees, agents, licensors, consultants, suppliers, and any third- party Web site provider, from and against all claims, demands, actions, liabilities, losses, expenses, damages, judgments and costs, including attorneys’ fees, resulting from Your violation of this Agreement, misuse or abuse of the Service, violation of State or Federal law, or infringement thereof by You or Users of Your account. MCL reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You. You must not in any event accept a settlement of any dispute relating to this contract without prior written consent of MCL.
If legal proceedings are instituted to enforce any or the terms and conditions of Your Order Form or this Agreement, You agree to pay all costs of MCL in connection therewith, including actual attorneys fees.
You hereby grant MCL authorization in advance to view any files or information, which arises as a result of a repair or system improvement. Any information disclosed to MCL during a repair or system improvement shall be treated as confidential and proprietary and shall not be disclosed by MCL to any party or used by MCL for any purposes other than the performance of this agreement. You also authorizes MCL to delete, change, and /or rewrite any necessary information to complete the system repair or improvement. Hardware costs of any kind are not covered under the terms of this Agreement shall be billed at market rates.
Unless otherwise stated in an Order, Services rendered under this Agreement do not include: (i) parts, equipment or software not covered by vendor/manufacturer warranty or support; (ii) the cost of any parts, equipment or shipping charges; (iii) the cost of any Software, Licensing, Software renewal or upgrade fees not specifically included within this Agreement; (iv) the cost of any 3rd party vendor or manufacturer support; (v) the cost associated with modifications to Client’s environment made to reach minimum standards required for Services, (vi) the cost of services and repairs due to modification of equipment, other than that those authorized by MCL, including but not limited to alterations, software installations or modification of equipment made by Client’s employees or anyone other than MCL; (vii) maintenance of application software packages; (viii) modification of software code as it relates to programming; (ix) website maintenance, updates, configuring, design, programming; (x) training services; (xi) cabling services; (xii) printer maintenance; and (xiii) computer lab equipment, software and/or hardware of any kind.
You agree to pay for all charges for Services and international calls, including but not limited to those incurred or placed by you or your customers, and those that are a result of fraudulent activity, fraudulent international calling, or a compromise of your system’s security resulting in increased consumption of Services of any kind.
Provision of VoIP Service.
Subject to the terms and conditions herein, MCL shall provide you with VoIP Service solely for your own use, and not for the benefit of any third party. Should you attempt to resell the VoIP Service, including the routing of Internet Protocol traffic from other individuals or organizations, MCL must be notified and may, at its sole discretion: 1) increase the fees associated with the VoIP Service rendered hereunder and in the Order, or 2) terminate this Agreement. You agree that the VoIP Services may not be used for purposes of: auto-dialing, telemarketing, call center activities, continuous use of extensive call forwarding, call relaying, fax broadcasting or fax blasting. MCL reserves the right to immediately terminate this Agreement, and/or modify the VoIP Service or pricing, if MCL determines, in its sole discretion that you are using the VoIP Service for any of the aforementioned activities.
Emergency Services and 911 and E-911 Calling.
You understand and acknowledge that the VoIP Service may not support traditional 911 or E-911 access to emergency services. You may not be able to use the VoIP Service, IP Phones or CPE and other Equipment to call for emergency assistance by dialing 911. 911 or E-911 calls may be routed to the nearest Public Safety Answering Point office (PSAP) or to a national office or emergency call relay center. Depending on which office your 911 call is routed to, You may be required to provide your name and physical address location to route your call to the correct 911 operator. Typically these calls are answered by the front desk of the PSAP and then routed to an emergency operator at that location, however, some PSAPs will not accept calls in this manner. Additionally, network congestion, radio interference, weak wireless signals, or other causes of reduced Internet access service performance may prevent You from being able to call 911, or may delay the routing of Your 911 call or E-911 information. You agree to notify, as appropriate, any users of Your VoIP Service of the terms and conditions described herein relating to 911 and E- 911. IN ADDITION YOU UNDERSTAND AND AGREE THAT IF YOU UNPLUG THE EQUIPMENT PROVIDED TO YOU BY MCL TO ENABLE YOUR VOIP SERVICE AND MOVE IT TO A DIFFERENT LOCATION THAT THIS MAY COMPLETELY DISRUPT YOUR ACCESS TO EMERGENCY SERVICES. YOU AGREE TO ASSUME ALL RESPONSIBILITY FOR AND INDEMNIFY MCL FROM ALL DAMAGES INCURRED BY YOU OR OTHERS AS A RESULT OF YOU UNPLUGGING AND MOVING EQUIPMENT THE PROVIDED TO YOU BY MCL TO ENABLE YOUR VOIP SERVICE TO ANOTHER LOCATION. FURTHER, YOU AGREE TO NOTIFY MCL IMMEDIATELY IF YOU UNPLUG THE EQUIPMENT PROVIDED TO YOU BY MCL TO ENABLE YOUR VOIP SERVICE AND MOVE IT TO A DIFFERENT LOCATION.
Loss of Service Due to Power Failure or Internet Service Outage. You acknowledge and understand that the VoIP Service does not function in the event of a power failure. Should there be an interruption in the power supply, the VoIP Service will not function until power is restored and may require you to reset or reconfigure the CPE, IP Phones, or other equipment. You acknowledge and understand that the VoIP Service requires a fully functioning connection to the Internet and that in the event of an Internet service outage the VoIP Service will not function until the Internet connection is restored. Further, you acknowledge and understand that in the event of a power failure or Internet service outage your access to Emergency Services via the VoIP Service may be completely disrupted.