FLA Fast Link, Inc – Internet, Ethernet and Wavelength Managed Services Agreement
- SERVICE. Subject to the terms and conditions set forth herein, including Appendix 1, which is attached hereto and hereby incorporated into and made a part of this Service Order Agreement (this “Agreement”), FLA Fast Link, INC (“Carrier”) agrees to provide to Customer broadband capacity services as specified on the Service Order (the “Service”) and Customer agrees to be legally bound by and to this Agreement. Service may be provided through carrier’s proprietary network and/or through third parties’ networks and leased facilities.
- TERM AND TERMINATION. The term of the Service shall be as specified in the Service Order. The term shall begin on the date of Acceptance by Customer as defined below. Such date shall hereinafter be referred to as the Service Date. This Agreement shall be renewed automatically in additional 12 month periods unless terminated by either party 3 months before the end of the Service Date . The Service shall continue at the same rate until such time as either party provides no less than ninety (90) days’ written notice of termination prior to the expiration of the then-current term. Written notice must be emailed, faxed and send via US mail or carrier service. Customer shall be deemed to have “Accepted” the Service upon the earlier of: (i) Carrier’s receipt of a signed Service Acceptance Notice from Customer; (ii) Customer’s use of the Service for other than testing; or (iii) Customer’s failure to return a signed Service Acceptance Notice stating with specificity the basis for its refusal to accept the Service within two (2) business days of receipt of the Service Acceptance Notice from Carrier. In the event of Acceptance pursuant to the foregoing subpart (iii), Acceptance shall be deemed to have occurred retroactive to the date of Customer’s receipt of the Service Acceptance Notice.
- BILLING AND PAYMENT. As compensation for the Service provided by Carrier, Customer shall pay in U.S. dollars the recurring and non-recurring rates and charges set forth in the Service Order, together with any supplemental charges (such as for changes to the requested start date, design changes and expedites) and any applicable taxes or other fees as defined in Section 4, below (collectively, the “Charges”). Such Charges shall be invoiced monthly in advance, commencing on the first day of the month following the Service Date and on the same day of the month for each month thereafter. Charges shall begin accruing on the Service Date. The initial invoice also shall include Charges for Service accrued prior to the commencement of billing. Payment for such Charges shall be due within ten (10) days of the invoice date (“Payment Due Date”). If payment is not received by the Payment Due Date, Customer shall be considered delinquent and the delinquent balance due shall be subject to interest charges at the rate of the lesser of one and one-half percent (1 ½ %) per month or the highest amount permitted by law, until paid in full. If Customer in good faith disputes any charges, it shall timely pay all undisputed charges, and also within ten (10) days of the invoice date give Carrier written notice of the disputed amount(s) and written documentation of the reason(s) therefor or any such disputes shall be deemed waived. Any amounts that are determined by Carrier to be in error or not in compliance with this Agreement will be adjusted on the next month’s invoice following such determination. Any disputed amounts that in good faith and supported by reasonable documentation are deemed by Carrier to be correct as billed and in compliance with this Agreement, will be due and payable by Customer, upon notification and demand by Carrier, along with late payment interest charges accrued from the Payment Due Date. Customer shall pay to Carrier all costs, including, but not limited to, legal fees, court costs and the fees of any collection agency, incurred by Carrier in exercising its rights under this Agreement.
- TAXES AND FEES. Any applicable foreign, federal, state or local use, excise, gross receipts, sales, value added, withholding or privilege taxes; duties, surcharges to recover universal service contributions, regulatory assessment fees or other taxes, fees, charges, surcharges or similar liabilities imposed on or based upon the provision, sale or use of the Service furnished by Carrier (collectively, “Taxes and Additional Charges”) shall be paid by Customer in addition to the recurring and non-recurring rates and charges set forth in each Service Order, excluding taxes based upon Carrier’s net income or real property. Applicable Taxes and Additional Charges shall include those, if any, that are imposed after the execution of this Agreement and shall also include all interest, penalties, fees and other charges for late payment. In the event Customer believes it is exempt from any Taxes and Additional Charges, Customer shall provide Carrier with a valid exemption certificate from the appropriate taxing authority evidencing such claimed exemption. Customer shall be liable to Carrier for any and all costs, expenses and liabilities of any kind incurred by Carrier (including, without limitation, the time value of money related to tax refunds for payments made by Carrier based upon Customer’s Service that are subsequently exempt from taxation) in connection with an otherwise valid exemption certificate not provided by Customer to Carrier within one (1) month of the Service Date.
If Customer is or was required by law to make any deduction from any payment due hereunder, the Customer agrees to pay the full amount of such Taxes and Additional Charges and such additional amounts, if any, as may be necessary so that every payment of all amounts due under the Agreement, after deduction for or on account of any Taxes and Additional Charges, shall not be less than the amount provided for in this Agreement if no such deduction had been required.
If any taxing or governmental authority asserts that Customer should have made a deduction for or on account of any Taxes and Additional Charges with respect to all or a portion of any payment made hereunder, Customer agrees to indemnify Carrier for such Taxes and Additional Charges and hold Carrier harmless on an after-tax basis from and against any Taxes and Additional Charges levied or asserted in connection herewith.
- CREDIT APPROVAL AND SECURITY. Carrier’s provision of Service is contingent upon continuing credit approval by Carrier. Customer authorizes Carrier to seek such details concerning its credit background as Carrier deems necessary, and consents to Carrier’s disclosure of account information to or from credit reporting agencies, credit bureaus, private credit reporting associations and other providers of telecommunications services. At any time prior to or during the term of the Service, Carrier may require a deposit, letter of credit or other form of security in an amount acceptable to Carrier pursuant to Carrier’s credit review procedures.
- EQUIPMENT AND INSTALLATION FOR SERVICE. During the term of the Service, Customer grants Carrier the right free of charge to occupy portions of the Customer’s facilities and real property (“Space“) for the placement and maintenance of Carrier’s communications equipment and cabling (“Carrier Equipment“) and interconnecting such Carrier Equipment to Carrier’s network for the purpose of providing the Service. Carrier shall be given adequate power for the Carrier Equipment without charge and the right to pass through third party traffic without add/drop capability. Carrier shall be permitted twenty-four (24) hours a day, seven (7) days a week access to the Space, subject to reasonable documented rules of Customer governing such access. Customer shall provide Carrier with notice of any proposed modification to such rules thirty (30) days prior to any such modification being implemented.
- CREDITS. Except as otherwise set forth below in this Section 7, in the event of an interruption in Service, Customer shall be entitled to claim a credit against the following month’s invoice in an amount as set forth in Appendix 1. A “Service Interruption” begins when Carrier learns Service is interrupted and ends when Service is restored, but shall not be deemed to include interruptions caused, or contributed to, directly or indirectly, by any act or omission of Customer and/or Customer’s end users, affiliates, agents or representatives, or unrelated third parties; the failure of interconnecting service (i.e., third parties’ networks and leased facilities) and/or equipment not part of Carrier’s Equipment; any planned or emergency maintenance; or due to a Force Majeure event, as defined herein, or other circumstances beyond Carrier’s reasonable control.
Notwithstanding the foregoing, a Service Interruption will not qualify for credits or any other remedy where the facility or circuit is inoperative, but is not released for testing or repair by Customer, or where Customer does not give Carrier access to the Space. The credits set forth in this Section 7 and in Appendix 1 shall be Customer’s sole and exclusive remedy for any loss or damage sustained as a result of any interruption, Service-related condition, installation delay or failure of the Service or any Carrier Equipment or service used in providing the Service, regardless of the cause, and for however long it shall last, and in no event shall any acts or omissions by Carrier resulting in credits hereunder constitute a Default, as defined herein, under the Agreement.
- FORCE MAJEURE. Carrier shall not be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond its reasonable control and/or without its fault or negligence, including, without limitation, acts of God, acts of civil or military authority, government laws, rules or regulations, labor disputes, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, cable or fiber cuts, strikes of party or its affiliates, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, or hurricanes (collectively, “Force Majeure“).
- DEFAULT AND TERMINATION.
9.1. The occurrence of any one (1) or more of the following shall constitute a Default:
9.1.1. Any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of a trustee or receiver, or similar event with respect to either party;
9.1.2. Either party’s violation(s) of any applicable laws, statutes, ordinances, codes or other legal requirements with respect to its use of the Service and the failure to remedy such violation(s) within the time frame(s) allowed by law;
9.1.3. Either party’s failure to perform its material obligations under this Agreement (excluding Customer’s non-payment of undisputed charges as set forth in Section 3, above) where such nonperformance is neither excused by a Force Majeure event nor remedied within thirty (30) days after written notice thereof; provided that if such nonperformance cannot be cured within such thirty (30) day period with the exercise of reasonable due diligence and the defaulting party provides adequate assurance of its ability to perform, the defaulting party shall be given a reasonable additional period of time in which to cure such nonperformance, so long as it is acting promptly and diligently to cure; or
9.1.4. The failure by Customer to pay undisputed charges within ten (10) days’ notice of non-payment.
9.2. In the event of a Default by Customer, upon notice to Customer, Carrier may terminate the Agreement or Service Order, in whole or in part, or suspend Service or any portion thereof with no further performance obligation, and Customer shall be liable for all amounts due and owing as of such termination or suspension date, plus early termination charges as set forth herein shall apply.
9.3. In the event of a Default by Carrier, upon notice to Carrier, Customer, as its sole and exclusive remedy, may terminate the Service without liability for early termination charges and shall be entitled to a refund of any prepaid amounts for Service not rendered.
9.4 Suspension of service. Supplier may, without terminating this Agreement, immediately suspend part or all of the Services until further notice if (i) Supplier is obliged to do so to comply with an order, instruction of Government, an emergency services organization, or other competent administrative authority. Supplier will inform Customer as soon as reasonably possible if it needs to suspend the Services for this reason, or (ii) Supplier needs to maintain or upgrade its Network defined as scheduled maintenance in the SLA, or (iii) Customer’s traffic patterns harm Supplier’s network or other Customers’ networks, as for instance in case Customer is subject to a DoS attack or (iv) in violation of AUP policies as defined by the carrier and posted on it’s website or provided via email.
- EARLY TERMINATION CHARGES. In the event Customer cancels or terminates this Agreement or Service Order, in whole or in part, prior to the end of the term, except as otherwise expressly permitted under this Agreement, Customer agrees to pay Carrier, as liquidated damages and not as a penalty, an early termination charge with respect to the cancelled or terminated Service as follows: (a) all non-recurring charges specified in the Service Order (including previously waived and amortized charges); plus (b) all disconnection, early cancellation or termination charges incurred by Carrier on Customer’s behalf; plus (c) one hundred percent (100%) of the total monthly recurring charges specified in the Service Order multiplied by the number of months remaining in the first year of the term, plus one hundred percent (100%) of the total monthly recurring charges specified in the Service Order multiplied by the number of months remaining in the second year of the term, plus seventy-five percent (75%) of the total monthly recurring charges specified in the Service Order multiplied by the number of months remaining in the term after the first twenty-four (24) months of the term. Notwithstanding the foregoing and anything else to the contrary contained in this Agreement, where Carrier must build fiber or facilities (e.g., obtain space and/or deploy equipment) to provide Service to Customer, Customer’s Service Order for Service in connection with the build shall not be subject to cancellation once submitted to and accepted by Carrier, Customer shall have no right to terminate the Service for convenience prior to expiration of the Service Order’s term, and Customer shall be liable for 100% of the monthly recurring charges applicable to such Service Order for its entire term.
- DISCLAIMER OF WARRANTIES. CARRIER MAKES NO ORAL OR WRITTEN WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, IN FACT OR IN LAW, AND ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXCLUDED AND DISCLAIMED.
- LIMITATION OF LIABILITY.
12.1. Except as otherwise specifically set forth in this Agreement, neither party shall be liable to the other party for any direct or indirect, consequential, special, incidental, reliance or punitive damages of any kind or nature whatsoever (including, but not limited to, any lost profits, lost revenue, lost savings, cost of substitute equipment or services, or harm to business), regardless of the forseeability thereof, whether based upon statute, contract, tort, negligence, strict liability or otherwise. Each party hereby releases the other party, its subsidiaries and affiliates, and their respective officers, directors, managers, employees and agents from any such claim.
12.2. Except with respect to Section 13.1, below, the total liability of Carrier in connection with this Agreement shall in no event exceed sums actually paid by Customer to Carrier for the Service which gives rise to the claim.
12.3 Internet Access. The Customer acknowledges that in any case the Supplier neither operates nor controls Internet and has to settle contracts with third parties. Therefore the Supplier isn’t liable either directly or indirectly for: (i) the information, the merchandises, the content of the services provided, available or accessible via Internet; or (ii) the use of these items by the Customer; or (iii) the action of other Internet suppliers, including but not limited to restraints on Internet access. Neither Party is liable to the other Party in respect of the subject-matter hereof except as expressly set out in this Agreement, and has no other obligation or liability whatsoever in contract, tort or otherwise to the other Party.
12.4. The limitations set forth in Section 12.1, above, shall not limit Customer’s indemnification obligations hereunder with respect to third party claims against Carrier as set forth in Section 13, below.
13.1. Each party shall indemnify, defend and hold harmless the other from and against any and all liabilities, claims, damages, losses, costs,
expenses and judgments arising out of or in connection with bodily injury (including death) or damage to tangible property caused by the negligence or willful misconduct of the indemnifying party, its employees, directors, officers, agents or invitees.
13.2. In addition to its obligations pursuant to Section 13.1, above, Customer shall indemnify, defend and hold harmless Carrier from and against any and all (i) proceedings to recover taxes, fines or penalties for failure of the Customer to obtain or to maintain in effect any necessary certificates, permits, licenses, approvals, authorizations or other authority, whether federal, state or international, to use the Service required to be obtained or maintained by Customer under applicable law; (ii) libel, slander, copyright infringement, patent infringement or unauthorized use of a trade secret, trademark, trade name or service mark by Customer; and (iii) any and all claims of Customer’s end users that use the Service through Customer, and any and all third party claims resulting from Customer’s use of the Service.
- INSURANCE. N/A
- WAIVER. No failure or delay on the part of a party in exercising any right, power or privilege hereunder and no course of dealing by a party shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege by such party hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
- AMENDMENT. No subsequent agreement among the parties concerning the Service or this Agreement shall be effective or binding unless it is made in writing by authorized representatives of the parties.
- ENTIRE AGREEMENT. In the event Customer has not executed a master services agreement with terms and conditions for the broadband capacity services as specified on the Service Order, this Agreement sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings relating to the subject matter hereof.
- NO THIRD PARTY BENEFICIARIES. This Agreement inures to the benefit of Carrier and Customer only, and no third party shall have any rights hereunder.
- SEVERABILITY. If any part of any provision of this Agreement or any other agreement, document or writing given pursuant to or in connection with this Agreement shall be invalid or unenforceable under applicable law, said part shall be ineffective to the extent of such invalidity only, without in any way affecting the remaining parts of said provision or the remaining provisions of this Agreement.
- GOVERNING LAW AND VENUE. This Agreement shall be governed by the laws of the State of Florida without regard to choice of law principles. Venue for any and all actions brought by either party to enforce the terms hereof shall reside in Miami-Dade County, Florida, and each party hereby irrevocably submits to the personal jurisdiction of the courts located in such county.
- ASSIGNMENT. Neither party may assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided that any proposed assignment by Customer shall be subject to Carrier’s credit approval of the proposed assignee. Notwithstanding the foregoing, no consent shall be required for an assignment by Carrier to an entity that either controls or is controlled by or is under common control with Carrier; or to an entity which succeeds to all or substantially all of Carrier’s assets whether by merger, sale or otherwise; or to any institutional lender to whom this Agreement is assigned as collateral security for any indebtedness of Carrier or any affiliate of Carrier, provided that such collateral assignment is subject to the terms of this Agreement.
- PUBLICITY. This Agreement shall not grant to either party a license to use any of the other party’s (or its affiliates’) trademarks, service marks or trade names (“Trademarks”). Neither party may, without prior written consent, use the other party’s Trademarks in marketing, promotional, advertising or similar materials, or in any other manner. Neither party may issue any public or press release regarding the other party, or disclose the existence of this Agreement, without the prior consent of the other party.
- NOTICES. Except as otherwise expressly provided herein, all notices or other communications permitted or required hereunder shall be in writing and mailed by certified mail, return receipt requested, or sent by receipted overnight courier to Customer at the billing address set forth in the Service Order and to Carrier at 14629 SW 104 St, #445, Miami, Fl 33186 Attn: Contract Management and copies emailed to firstname.lastname@example.org and email@example.com. Notices shall be deemed given three (3) days after deposit in the U.S. mail postage prepaid, if sent by certified mail, or when received or receipt is refused if sent by receipted overnight courier. The foregoing delivery addresses and recipients may be changed by either party by notice pursuant to this Section 23.
- NETWORK/SYSTEM INTEGRITY. Customer and its end users shall not operate hardware or software that Carrier, in its sole discretion, deems harmful, hazardous or capable of causing interference, congestion or interruptions to Carrier’s network, Carrier’s Equipment or the Service. Upon written or verbal notice from Carrier, Customer and/or end user(s) shall immediately remove the offending hardware or software. If Customer and/or end user(s) fail to do so, Carrier may suspend Service without notice; provided, however, that Carrier shall afford Customer a reasonable opportunity for cure before terminating this Agreement.
24.1 Domain Name and IP address. At Customer’s request and in case Supplier is responsible for hosting Customer’s Domain Name(s), Supplier may require on Customer’s behalf the allocation and registration of one or more Domain Names. Customer warrants that (i) the information given during the Domain Name registration process is accurate, and (ii) the Domain Names required and their use shall not hamper any Third Party’s rights, shall not transgress any brand name or individual or moral right, or any right to Intellectual or Industrial Property, and (iii) Customer has a legitimate professional reason to register each Domain Name. Supplier reserves the right to ask Customer to choose another Domain Name and may suspend the Name Service in case there should be any reason to believe that the Domain Name does not respect any condition of the present clause. The Registration and use of a Domain Name is governed by Authorised Organisations, by whose conditions Customer agrees to abide. Customer relinquishes any demand against Supplier concerning a decision made by the Authorised Organisation to refuse the allocation of the required Domain Name. Customer agrees that fees paid for the allocation of a Domain Name cannot be reimbursed by Supplier. Supplier reserves the right to suspend or terminate the allocation and hosting of a domain name, on written notice, if (i) the Domain Name registration is withdrawn or the Name allotted to a Third Party, or (ii) Supplier is aware of any protest, claim, litigation or decision by a Court of Justice, that should forbid the usage of the said Domain Name. Any IP address allocated by Supplier to Customer remains the Supplier’s property. Customer is given a license to use the IP address until the contract is terminated. This license cannot be sold or transferred to any third party.
25. NEW RULES OR ACTIONS. The parties acknowledge that some rights and obligations of Carrier under this Agreement may be affected by future rules, regulations, guidelines, orders, treaties or laws promulgated, enacted or entered into by federal and state legislatures, by federal and state agencies, local or federal governments, and international or other regulatory bodies (together “Rules or Actions”). In the event that any such Rules or Actions adversely revise or modify Carrier’s obligations under this Agreement, Carrier may, upon written notice to Customer, require this Agreement be renegotiated in good faith to reflect the effect of any such Rules or Actions.
26. CONFIDENTIALITY. During the period of this Agreement and for three (3) years following its termination for any reason, both parties agree to treat confidentially, all information received by either party from the other. For purposes of this Agreement, all such information received by either party together with any other information that has heretofore been provided by the other, is collectively referred to as “Confidential Material.” The term “Confidential Material” however, does not include information which (a) is proven to be a matter of public knowledge or which has heretofore been published in or otherwise ascertainable from any source available to the public (b) hereafter becomes generally available to the public other than as a result of disclosure by the receiving party or its representatives, affiliates or agents (c) was available to the receiving party prior to its disclosure by the other, or (d) becomes available from a source other than the disclosing party, provided that the source is not bound by a contemporaneous confidentiality agreement with the disclosing party.
Both parties expressly agree not to use for any purpose, or to disclose, any portion of the Confidential Material of the other party to any third party except to such third parties as attorneys, accountants or consultants who need to know such information for the purpose of carrying out the obligations of such other party under this Agreement; not to make copies or allow others to make copies of the Confidential Material without the written consent of the disclosing party, other than as permitted pursuant to this paragraph; upon expiration or termination of this Agreement, to either return all Confidential Material (including all copies thereof) to the disclosing party or to destroy the same upon request by the disclosing party, and to destroy any notes or other documents containing information derived from the Confidential Material; to cause all persons who require access to the Confidential Material on to be bound by and conduct their use thereof in accordance with the terms of this Section 26; and to reimburse, indemnify and hold harmless the disclosing party from any damages incurred as a result of the use of the Confidential Material by the receiving party or its representatives contrary to the terms of this Section 26.
- HEADINGS. The paragraph headings used in this Agreement are for purposes of convenience only, and shall not be deemed a part of this Agreement for purposes of construction or interpretation.
- CONTRACT EXECUTION. Upon execution of this Agreement by both parties, any copy, duplicate or facsimile of this executed Agreement will be valid and legally binding with the same force and effect as the executed Agreement bearing original signatures.
AND SYSTEM ACCEPTANCE
- Specifications. The Service provided hereunder shall have a network availability objective, measured monthly, as follows:
(Transport not Internet or MPLS)
|.1 to 10 gigabit||99.90%|
|Circuit (Transport not Internet or MPLS)||E-1, DS-3 or OC-n/STM-n||99.997%|
- Monitoring. Carrier will be responsible for performing surveillance of the Service. Carrier will maintain a twenty-four (24) hours a day, seven (7) days a week point-of-contact to whom Customer can report system trouble or faults. Customer shall maintain and provide to Carrier a list of Customer contacts for maintenance and escalation purposes.
- Maintenance. Scheduled routine maintenance will be performed during specified customer maintenance windows and will be communicated in advance to Customer. Carrier will notify Customer upon completion of the scheduled maintenance work. Maintenance that may place the Network in jeopardy or require Network down time will normally be performed during the “Maintenance Window” of 12:00 midnight and 6:00 a.m. Eastern time or, upon Customer’s request, at a time mutually agreed to by Customer and Carrier. Maintenance that may place the Network in jeopardy or require Network down time that will be performed outside of the normal Maintenance Window will be cleared with Customer no less than forty-eight (48) hours prior to commencement. Notwithstanding the foregoing, Customer understands that any time Carrier may perform emergency maintenance, in its sole discretion and without notice, to preserve the overall integrity of the Service or Network. Customer further acknowledges and agrees that the suspension of the availability of any Service pursuant to this Section 3 shall not be deemed a qualifying Service Interruption nor a violation by Carrier of any of its obligations under this Agreement.
- Credits for Service Interruption.
In the event of a qualifying Service Interruption(s) as defined in the Agreement, Customer shall be entitled to a credit on its next monthly invoice for the total Service Interruption time during the prior month as follows:
|Total Service Interruption||E-1, DS-3, OC-n or STM-n
|Total Service Interruption||Wavelength/Giga-bit Ethernet
|15 minutes – 1 hour||5% of MRC||45 minutes – 2 hours||5% of MRC|
|Each hour or fraction of an hour thereafter||5% of MRC up to a maximum of
10% of MRC
|Each hour or fraction of an hour thereafter||5% of MRC up to a maximum of 10% of MRC|
- System Acceptance Criteria. The following acceptance tests will be conducted:
5.1 Testing shall be clear channel, head-to-head cooperative testing. Testing shall run over a twenty-four (24) hour period mutually agreed upon by the parties. Customer shall accept the Service when it is error-free over any twenty-four (24) hour period.
5.2 All equipment alarm functions and status indicators provided by the equipment vendor will function properly under all simulated (non-destructive) alarm conditions.