SERVICE PROVIDER MASTER SERVICE AGREEMENT
Last Updated September October 2022
1 Terms.
The terms and conditions in this Master Service Agreement shall be binding between 46 Labs and Customer upon execution of a Service Order, and together with the terms and conditions in each Service Order, any supplemental terms and conditions, including applicable exhibits, Service Schedules (e.g., Infrastructure Services) which are incorporated herein and comprise Customer's agreement with 46 Labs. This Agreement represents the entire agreement between the Parties and supersedes and merges all prior offers, agreements, promises, understandings, statements, representations, warranties, indemnities, and inducements to the making of this Agreement relied upon by either party, whether written or oral, between or among Customer and 46 Labs as well as 46 Labs' agents or employees. In the event of an inconsistency between these documents, the terms and conditions of the documents listed below shall control in the following order of precedence:
1.1 Any mutually agreed upon Service Order or amendment thereto, properly executed by authorized representatives of both 46 Labs and Customer;
1.2 Applicable supplemental terms and conditions, including the Service Schedules, Privacy Policies, and Service Support Agreements;
1.3 This Master Service Agreement and attachments to this MSA;
THIS Master Service AGREEMENT, Service SUPORT AGREEMENT, and Privacy POLICIES ARE ACCESSIBLE ON THE 46 LABS WEBSITE WWW.46LABS.COM AND MAY BE MODIFIED BY 46 LABS AT ANY TIME. PRIOR TO ANY MATERIAL CHANGES TO ANY OF THE AFOREMENTIONED BECOMING EFFECTIVE, 46 LABS WILL NOTIFY CUSTOMER THIRTY DAYS (30) PRIOR. NOTIFICATION OF ANY CHANGE MAY BE IN THE FORM OF AN INVOICE INSERT; BY A MESSAGE ON THE CUSTOMER'S INVOICE; BY POSTCARD OR LETTER; BY 46 LABS' CALLING AND SPEAKING TO CUSTOMER OR LEAVING A MESSAGE FOR CUSTOMER; BY POSTING ON 46 LABS' WEBSITE AT WWW.46LABS.COM; OR BY EMAIL. CUSTOMER SHALL BE BOUND BY CHANGES IMMEDIATELY AFTER THEY BECOME EFFECTIVE.
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2.12 "Indemnified Party" shall mean the party to this Agreement seeking Indemnification under Section 10 by reason of having a claim made against it.
2.13 "Indemnifying Party" shall mean the party responsible for providing indemnification under Section 10.
2.14 "Infrastructure Services" shall mean and refer to the managed data and device services as described in the Infrastructure Services Schedule attached hereto.
2.15 "Monthly Recurring Charge" or "MRC" shall mean fees for Services that are fixed in amount and not dependent on usage.
2.16 "Monthly Usage Charge" or "MUC" shall mean fees for services that are variable in amount and are based on Customer usage.
2.17 "MSA" shall refer to and mean this Master Service Agreement.
2.18 "Non-recurring Charge" or "NRC" shall mean one-time fees for a discrete service as described the applicable SO and may include professional services, set-up, installation, upgrade, relocation, or other such onetime, non-refundable charges.
2.19 "Normal Usage" shall mean less than two-thousand five hundred (2,500) inbound, outbound or toll free local or long-distance minutes or text messages in aggregate per month per subscriber line, SIP trunk, hosted seat, PRI/T-1 trunk/DS0 or analog line. By way of example only, a Customer who contracts for 50 sip trunks, if the Customer's total monthly local/long distance inbound minutes or local/long distance outbound minutes (as applicable) exceeds 125,000 minutes / per month (2,500 minutes/sip trunk x 50 trunks) that would be considered in excess of Normal Usage.
2.20 "Privacy Policy" or "PP" shall mean and refer to the Carrier Services Privacy Policy available at www.46labs.com.
2.21 "Regulatory Change" shall mean to the imposition of new regulations, modifications of existing regulations, new interpretation, application, or enforcement of, or exercise of authority related to, any regulation or finding of any federal, state and/or local regulatory agency, legislative body, or a court of competent jurisdiction, including, without limitation, the imposition of any fees, surcharges, and/or taxes in reliance on or because of the same.
2.22 "Service" shall refer to the 46 Labs data, device and management services and all associated software applications, hardware, documentation, or equipment supplied by 46 Labs, or a third-party by the direction of 46 Labs, in addition to the Services described in the SO.
2.23 "Service Level Agreement" or "SLA" shall mean the terms and conditions for service outages as described in Attachment 2.
2.24 "SS" or "Service Schedule" shall mean and refer to the terms and conditions for the specific products and services as described in any applicable SO.
2.25 "Service Credit" refers to a credit for a service failure as further described in the SLA.
2.26 "SO" or "Service Order" “SO” or “Service Order” shall mean and refer to any 46 Labs Service Order associated with the Agreement and may include orders on a service order form or requests for changes to service made by a User through the 46 Labs services portal.
2.27 "Service Order Term" shall have the meaning and duration as set forth in the associated SO.
2.28 "Support Service Agreement" or "SSA" shall mean and refer to the Service Support Agreement available for review at www.46labs.com.
2.29 "Start of Service Date" shall mean the date the Services are installed at the requested customer installation location, accessible through the 46 Labs Customer portal and available to the Customer for use.
2.30 "Tax Exempt Document" shall mean the Customer provided tax-exempt certification showing proof they are not subject sales, use, or regulatory taxes.
2.31 "Term" shall have the meaning set forth in Section 12.
2.32 "User" shall mean the Customer and their authorized end-users of the Services.
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3.1 General Service Limitations. The Service is offered and furnished subject to the availability, in 46 Labs' sole judgment, of all necessary facilities, including those acquired or leased by 46 Labs from other entities. The services provided under this MSA may have further limitations or requirements as described in the associated SS. The Ability for 46 Labs to deliver service to Customer's facility may require construction resulting in extended implementation timelines, additional upfront/one-time build-out costs and/or increases to the MRC.
3.1.1 Reseller. : 46 Labs is acting as a reseller/network provider of certain services, facilities and equipment provided by third parties. 46 Labs may be unable to initiate service due to facilities or other constraints of third parties. Further, 46 Labs cannot guarantee any requested turn up/start of service date or ensure that 46 Labs or its underlying network/facilities providers can achieve any projected turn up/start of service date. Any statement or representation to the contrary shall be deemed null and void.
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3.2.1 Suspension for Fraud, Network Blockage or Degradation, Legal Compliance. : 46 Labs may discontinue furnishing Service by blocking connectivity to or from certain countries, cities; or cancel Customer's account immediately and terminate this Agreement without notice and without 46 Labs incurring any liability whatsoever, if 46 Labs deems that such action is necessary to prevent or protect against fraud, or to otherwise protect 46 Labs' personnel, agents, facilities or services, for reasons which include but are not limited to: (a) violation of the AUP; (b) use or misuse of the service in a manner that results, or could result, in network blockage or other degradations that adversely affect the service furnished to Customer or to other existing or prospective customers of 46 Labs; (c) uses, or threatens to use any of the services for any unlawful or fraudulent purpose or otherwise violates the terms of the Agreement; (d) if 46 Labs is ordered or requested to terminate service by a governmental entity; (e) a change in law or regulation that financially impairs 46 Labs ability to deliver the service; or (f) violation of any other FCC or FTC rule or law applicable to the service.
3.2.2 Suspension for Customer Failure to Perform Obligations. : 46 Labs may at any time suspend service, terminate service, or require Customer to deposit funds as security for any of the following reasons: (a) Customer fails to pay any amount owed to 46 Labs when due; (b) Customer's failure to comply with any material term or condition of this Agreement within ten (10) days after receiving written notice; (c) for usage by Customer beyond any credit limit or prepaid balance limit imposed by 46 Labs; (d) if, in 46 Labs' sole judgment, any aspect of Customer's payment arrangements with 46 Labs appear to be fraudulent, including false or misleading credit information, or Customer's use of a credit card that has been reported as misused or stolen; (e) Customer's ability to pay, or if, in 46 Labs' sole judgment, Customer's payment arrangements with 46 Labs appear to be inadequate to meet any of Customer's obligations to 46 Labs coming due; (f) Customer's filing of any voluntary petition of bankruptcy or the filing of an involuntary petition in the bankruptcy court which names Customer as the debtor; or (g) Customer communicates any intent to breach, or to not comply with the terms of this Agreement, including but not limited to payment for services.
3.2.3 Customer Obligation to Pay Through Disconnection Period. : Customer shall be responsible for payment of all MRCs through any disconnection period.
3.2.4 Service Reconnection Delay. : In the event 46 Labs invokes its right to suspend, alter, terminate, disconnect, or any combination thereof for Customer's violation of this Section and the Customer subsequently resolves the issue, the process of reconnection of the Service may take up to thirty (30) business days.
3.2.5 Regulation and impact on fees. : The fees set forth in the Agreement are subject to Regulatory Change. 46 Labs reserves the right, at any time, including retroactively, to do either or both (a) to charge as a pass through to Customer all fees, surcharges or taxes directly or indirectly related to such Regulatory Change or (b) modify the rates and/or terms and conditions of the Agreement to reflect the impact of such Regulatory Change, including, without limitation, the impact of any actions by third parties in connection with such Regulatory Change.
3.3 Service Requirements, Right to Alter Service. : In its sole discretion and without liability to Customer, 46 Labs may: (a) alter the methods, processes, or suppliers by or through which it provides Service; (b) change the facilities used to provide Service; or (c) substitute comparable Service for that being provided to Customer. If necessary due to the potential impact on affected Customers, 46 Labs will furnish prior notice of any alterations, changes, or substitutions.
3.4 Service Start Date. : 46 Labs will use its commercially reasonable efforts to activate Services by the agreed-upon date as described in an associated SO. However, 46 Labs cannot guarantee Service activation by a particular date because of reliance on third parties, including Customer, to perform certain tasks and provide certain information before 46 Labs can activate Services. Customer is responsible for canceling any communications services that the Services will replace and for all fees related to those services. Customer is advised not to cancel any services until the Customer has received written confirmation that the porting has been successfully completed. Customer acknowledges that requests and payments for an expedited installation do not guarantee that any third party will meet a requested installation date. Requests for expedited installation may expedite the process by which Customer's order is serviced, but 46 Labs cannot guarantee that any installation will occur by a specified date. 46 Labs cannot refund any payment made for expedited service if an expedited service date is not met. In the event Customer requires a change a scheduled service date less than six business days from originally scheduled date, the Customer will be assessed a rescheduling fee.
3.5 Service Availability. : Service Availability shall be set forth in the SLA.
4 Billing and Payment Arrangements.
4.1 Form of Invoice. : 46 Labs shall deliver invoices for Services by either email, web portal or surface mail. Any invoice delivered by any of these methods shall constitute a valid bill for Services.
4.2 Payment, Due Date.
4.2.1 Payment Obligation. : Services Generally. Customer shall pay for all Services ordered from 46 Labs, pursuant to the terms and rates set forth in the SO. Customer's obligation to pay for Services and the associated MRC and NRC fees shall begin on the Start of Service Date. Customer shall timely pay the full amount invoiced less any Billing Dispute, even if Customer expects a portion of the invoiced amount to be paid or reimbursed by a future credit. Payments shall be due thirty days (net 30) from the date of the invoice. Undisputed amounts which are not paid in full when due will be past due and subject to an additional fee equal to the lesser of one-and-one-half percent (1.5%) per month late payment fee or the maximum monthly rate permitted by law. In the event of non-payment of any past due invoice due or a material breach of this Agreement, all outstanding invoices, including any unbilled usage charges shall become immediately due and payable, and Customer shall be considered in default.
4.2.1.1 Post payment of non-recurring items and charges. : For an MRC that begins after the first day of the month, such fees will be prorated for the initial billing period. Each month, 46 Labs shall bill Customer in arrears for MUCs, non-recurring and prorated monthly fees. MRCs that begin or are terminated between the Start of Service Date and the end of a billing period will be prorated.
4.2.1.2 Prepayment of third-party fees. : Unless Customer receives credit approval in writing from 46 Labs, the Customer will be invoiced for all third-party service or equipment charges on a prepaid basis.
4.3 Customer Credit. : If Customer requests credit from 46 Labs, it agrees that 46 Labs may request credit information from third parties, and Customer authorizes the release of such information.
4.4 Forms of Payment. : Acceptable forms of payment include ACH and wire transfers. Payment by paper check or cash is not acceptable. 46 Labs may, in its sole discretion, accept payment by credit card. A Credit Card Surcharge will be applied to the total amount paid using a credit card. If Customer pays 46 Labs by credit card, then Customer's continued use of Services after Customer's payment to 46 Labs appears on Customer's credit card account, shall be construed as Customer's acknowledgement of the validity of such as undisputed fees. Thereafter, Customer waives all rights to reverse such fees and shall be responsible for all expenses and fees 46 Labs incurs for contesting a Customer's attempt to reverse the credit card charges.
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4.5.1.1 Service fees are exclusive of all taxes, fees, tax-related surcharges, and tax-like surcharges as enumerated below. Customer shall be responsible for, and must pay, all taxes, including, without limitation, sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, consumption and other taxes, fees, duties, charges, or surcharges, roaming charges, however designated, and imposed directly on 46 Labs based on the provision, sale, or use of Service.
4.5.1.2 If Customer believes it, or the Services it receives and uses, are exempt from any tax, Customer will provide 46 Labs with a properly executed Tax Exempt Document in a form acceptable to 46 Labs that evidences the exemption claimed. Customer shall renew such certification annually and shall provide evidence of such continuing certification upon request by 46 Labs. In the event Customer fails to renew its tax-exempt certification, or if its tax-exempt certification is repealed, Customer shall be responsible to 46 Labs for all such taxes from the date Customer's tax-exempt certification became invalid. Tax exemption will only apply to taxes incurred after the date 46 Labs receives the updated Tax Exempt Document. Customer may submit their annual Tax Exempt Document to legal@46labs.com.
4.5.2 Installation Fees. : Quoted installation fees contemplate installations in normal locations under normal working conditions during regular business hours. Any installations under other circumstances including, but not limited to, hazardous locations, on an expedited basis outside of standard installation intervals will be subject to additional fees.
4.5.3 Third Party Service Charges. : If an entity other than 46 Labs imposes fees on 46 Labs in connection with the provisioning of Service to Customer such fees will be invoiced by 46 Labs at a rate of cost plus 20% of the fee.
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4.6.1 Effect of Termination. : If any service provided under this Agreement is terminated for any reason, Customer will pay 46 Labs for (a) services that Customer has used through the date 46 Labs or Customer terminates the services, (b) any outstanding balance for NRCs or MOCs, for the service and (c) all fees that may still be due or may be incurred for early termination including ETL.
4.6.2 Except as may be mutually agreed upon in writing in the event Customer terminates the Service or the Agreement or any SO is after submission but before the end of the applicable term, the Customer shall pay to 46 Labs on demand, as liquidated damages and not as a penalty, an ETL fee. In the event of Customer's early termination, 46 Labs' actual damages would be impractical and/or extremely difficult to ascertain, so the parties agree the ETL set forth above is a reasonable estimate of actual damages. Assessment of an ETL does not relieve Customer of Customer's obligation to pay any non-recurring fees or any undisputed past due fees and interest thereon.
4.7 Recovery of Collection Costs. : Unless otherwise prohibited by law, Customer shall reimburse 46 Labs for any costs incurred by 46 Labs in undertaking any collection activity, including, but not limited to, the reimbursement of reasonable attorneys' fees. Reasonable attorney's fees shall include the time and costs associated with 46 Labs' in-house legal staff efforts related to the collection activity. For purposes of calculating the time and costs, the Parties stipulate that 46 Labs' in-house legal staff's time shall be billed at $350.00 per hour.
4.8 Right of Offset. : If Customer defaults on any payment obligation owed 46 Labs under any agreement for more than thirty (30) days and 46 Labs has funds that are owed the defaulting Customer, 46 Labs may offset that which it is owed by first applying such funds received to the full balance due by the defaulting Customer or any of Customer's Affiliates. Any amount remaining following the offset shall be remitted to Customer in the normal course of business.
4.9 No Rollover. : Unused Monthly base capacities for all services do not rollover into subsequent months.
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5 Billing Disputes.
5.1 Customer Obligation. : Customer's sole recourse for disputed fees shall be as outlined in this section. Any invoices issued to Customer shall be deemed correct and binding on the Customer unless Customer files a dispute according to the provisions of this Section. Customer shall timely pay the full amount invoiced subject to Billing Disputes described in this Section, even if Customer expects a portion of the invoiced amount to be paid or reimbursed in the future by a third party. Customer shall also pay any repair, telephone charges and fees for inspection, installation or repair of wiring performed on Customer's premises for the additional fees set forth in the Customer Policies.
5.2 Requirements for Valid Dispute. : An invoiced fee will be deemed disputed by Customer if, and only if: (a) Customer believes in good faith that the fee was invoiced in error; (b) Customer provides 46 Labs written notice of the disputed fee no later than ten (10) days from the date of the invoice on which the fee first appeared; and (c) Customer's notice of the disputed fee includes the amount of the disputed fee, the reason the fee is disputed, and documentation supporting the dispute, and (d) Customer provides all documents supporting each dispute. Customer shall not have the right to withhold any amount not properly disputed. If Customer does not dispute fees on the invoice within ten (10) days from the date of the invoice, then the invoice will be deemed to be correct.
5.3 Resolution of Disputed Fees. : 46 Labs shall have the right to determine, in good faith, the merit of each dispute and Customer's associated payment obligation. 46 Labs will investigate all billing disputes and notify Customer in writing that: (a) a credit will be issued to reverse any amount that 46 Labs determines was incorrectly billed, or (b) 46 Labs has determined that the disputed was invoiced correctly. After a billing dispute is resolved, if the dispute is resolved in 46 Labs' favor, Customer will, within five (5) business days of such resolution, remit to 46 Labs any required payment, plus interest at the lower of one and one-half percent (1.5%) per month or the maximum rate permissible under applicable state law, calculated from the due date until the date payment is received by 46 Labs. Failure to pay such amount in full within such five (5) day period shall be a breach of the Agreement and shall entitle 46 Labs, in addition to its other remedies at law or equity, to terminate all Services to Customer without notice and without liability of any kind or amount. If the dispute is resolved in Customer's favor, and Customer withheld payment of the disputed amount, then 46 Labs will issue a credit to reverse the amount incorrectly billed. If the dispute is resolved in Customer's favor and Customer previously paid the disputed amount, then 46 Labs will issue a credit to reverse the amount incorrectly billed and apply such credit against Customer's next invoice(s). If Customer is no longer being invoiced by 46 Labs, 46 Labs will remit to Customer the amount of the credit in US dollars within forty-five (45) days of the date of such credit.
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6.1.1 License to Services. : 46 Labs grants to Customer a personal, limited, non-transferable, non-exclusive, license, without the right to sublicense, transfer, copy or create derivative works, to use the Services during the term of the appropriate SO solely for use with the service specified in such SO and in accordance with the Agreement.
6.1.2 Ownership of Services. : Either 46 Labs or other third-parties own and will continue to own the Services. Customer may not decompile, reverse engineer, or otherwise use any software code from any Services provided by 46 Labs or its suppliers. Some software necessary to fully utilize the full functionality of the Services may require Customer to accept additional terms and conditions required by the third-party providers of such services. If Customer has purchased or leased equipment from 46 Labs or its certified third-party leasing company, then the Customer must install equipment in accordance with instructions provided by 46 Labs (or its third-party vendor). Customer may not change the settings on any equipment supplied by 46 Labs or its agents without 46 Labs' express written consent. In addition, 46 Labs-provided equipment must be used solely for the purpose of Service utilization. 46 Labs will use commercially reasonable efforts to supply and configure the equipment to allow Customer to use the Services, unless Customer is supplying its own equipment or purchasing it from a third party (including a 46 Labs authorized dealer or fulfillment partner). Customer acknowledges any equipment it leases or purchases, through 46 Labs or a recommended fulfillment partner, is only designed to work with 46 Labs' Services. If Customer or 46 Labs terminates Services for ANY REASON, Customer will NOT be eligible for a refund, either full or partial, for any fees paid by Customer for equipment, or for third party-supplied equipment.
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6.2 Return of Equipment. : Customer agrees to return all equipment provided 46 Labs or third-party vendors within thirty (30) days of (a) the termination of Services for any reason or (b) upon receiving replacement equipment for non-functioning equipment or as part of a Service upgrade. The equipment must be returned in the same condition as received, normal wear and tear excepted. Customer may receive a prepaid shipping label by emailing the request to support@46labs.com. Please include your company name, address, and telephone number in the request. If Customer fails to return all the equipment within thirty (30) day period, 46 Labs shall invoice Customer for the current replacement cost of any equipment not returned, plus applicable taxes.
6.3 Equipment Maintenance. : 46 Labs shall not replace, and the Customer shall be responsible for the full cost of replacement of deployed 46 Labs Equipment on Customer premise in the event of damage: (a) caused by accident, abuse, misuse, liquid contact, fire, earthquake or other external causes at the Customer facility; (b) caused by operating the Service outside the permitted or intended uses described by 46 Labs; (c) caused by service (including upgrades and expansions) performed by anyone who is not a representative of 46 Labs; (d) to a service or part of the service that has been modified to alter functionality or capability without the written permission of 46 Labs; or (e) if any serial number has been removed or defaced. 46 Labs and its suppliers shall have no obligation or liability in connection with any equipment not purchased through 46 Labs even if configured by 46 Labs, or for any abuse, misuse, or reconfiguration, including, but not limited to, the addition of software or other devices, of any equipment by any party other than 46 Labs.
6.4 Facilities and Service Security.
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6.4.2.1 maintain Internet firewalls to protect Customer's infrastructure and applications from unwanted and inappropriate access;
6.4.2.2 require that all Internet traffic to and from the 46 Labs datacenter's use encrypted methods to protect the confidentiality of the data stored in the Services;
6.4.2.3 monitor all systems and the Services that are subject to vulnerability scanning to identify any information security risks that may be present and trigger remediation efforts;
6.4.2.4 will provide, install, and maintain active anti-virus services on all appropriate systems and services installed in its Data Centers;
6.4.2.5 maintain regular patch management practices so that newly released security patches are applied to servers supporting the Services.
6.4.3 Data Backup. : 46 Labs shall perform a complete backup of the data stored by the Services each night using generally accepted backup procedures. All backups shall be maintained at the local facility as well as a copy in cloud storage and shall be retained for up to ninety (90) days before being destroyed. Unless a longer holding term is required by law as indicated in the Privacy Policy, the backup shall be retained in cloud storage center for ninety (90) days before being destroyed.
6.4.4 46 Labs accesses and uses the Services and associated data only as necessary to provide the Services, perform or enforce contractual obligations or comply with applicable law. By using the 46 Labs Services, Customer consents to the processing and storing of data used or created by the Services.
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6.5.1 NO WARRANTY FOR CPE. : IN ADDITION TO THE WARRANTY DISCLAIMERS ELSEWHERE IN THIS AGREEMENT, 46 LABS EXPLICITLY DISCLAIMS ANY AND ALL WARRANTY OR MAINTENANCE RESPONSIBILITY FOR CPE. ANY WARRANTY CLAIMS, MAINTENANCE, OR REPAIRS FOR CPE WILL BE THE SOLE RESPONSIBILITY OF THE CUSTOMER.
6.5.2 Use of Customer CPE. : 46 Labs is not responsible for the configuration of, maintenance, management, or support of, Customer's data centers, personal computers, network, telecommunications, or other telephony equipment that may be necessary to make CPE compatible with the Service. Customer may not use CPE that 46 Labs has not certified for use with the Services. Customer warrants that it will employ qualified vendors or technicians to install and service the CPE at the Customer's sole expense. Customer is solely responsible for ensuring that CPE complies with the compatibility guidelines published by 46 Labs. If Customer or a third party changes the settings with respect to CPE at Customer's location that 46 Labs uses to provide Service, including, but not limited to the addition of software or other devices on the local area network, then Customer assumes the risk that the Service may not work. Customer is solely responsible for ensuring the proper functioning of CPE. If 46 Labs dispatches a technician in response to a trouble ticket ultimately determined by 46 Labs to be the result of issues with the CPE, 46 Labs will charge Customer for the costs to dispatch the technician.
6.5.3 Facilities, Services, Equipment or Systems of Others. : 46 Labs shall not be liable for the unavailability, or deficient performance, of any CPE, facilities, services, equipment or systems used in connection with the provision of Services that are under the control of Customer or any third party engaged by Customer to provide such service (by way of example only, services such as Amazon Web Services), even if 46 Labs has acted as the Customer's agent in procuring them from third parties. Customer's rights regarding the unavailability or deficient performance of such facilities, services, equipment, or systems not provided by 46 Labs shall be strictly as established by the supplying entity. In all instances, the Customer shall be responsible for the security of its facilities, services, network equipment or systems interconnected, with 46 Labs' Service. Customer shall be liable to 46 Labs for any loss, theft, or damage to any of 46 Labs' equipment located on Customer's premises, however caused.
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8.1 Confidentiality Obligation. : Customer shall maintain the confidentiality of the Confidential Information and shall use the same level of care, but in no event less than a reasonable standard of care, as it uses to maintain the confidentiality of its own confidential information. Customer shall take reasonable steps to ensure that Customer's personnel, subcontractors, and personnel of such subcontractors, if any, comply with this Section, which steps shall include obtaining enforceable written agreements from Customer's personnel and subcontractors and requiring enforceable written agreements from personnel of subcontractors binding such entities and individuals to obligations of confidentiality no less restrictive than those set forth in this Agreement. Customer agrees that if it is required by law to disclose the Confidential Information, Customer shall first give written notice of such required disclosure to 46 Labs and 46 Labs shall have a reasonable opportunity to prevent or limit the third-party disclosure. Customer acknowledges monetary damages may not be sufficient remedy for unauthorized disclosure or use of Confidential Information and 46 Labs may seek without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. The confidentiality obligations under this Agreement shall remain in effect during the term of this Agreement and for a period of three (3) years after termination.
8.2 Customer Personal Information. : 46 Labs' confidentiality obligations to Customer for personal information are described in the PP.
8.3 Passwords. : Customer will be asked to create a password to gain access to Customer's account information on-line or when contacting a 46 Labs agent by phone. Customer agrees to keep all passwords and account information confidential, and Customer is solely responsible for any liability or damages resulting from Customer's failure to maintain that confidentiality, and for all activities occurring under Customer's password. Customer must immediately notify 46 Labs if Customer suspects any breach of security such as loss, or unauthorized disclosure or use of Customer's password and account.
8.4 Publicity. : Neither party shall disclose to any third party either the existence of or the terms of the Agreement and their relationship without the prior written consent of the other Party.
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9.2.1 46 Labs warrants (a) 46 Labs has full power and authority to enter into this Agreement and convey the rights conveyed herein; and (b) the signatory to this Agreement possesses all necessary authority to enter into this Agreement with 46 Labs in all respects and render it effective.
9.2.2 Warranty Disclaimer. : 46 LABS SPECIFICALLY AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER OR THE FACILITIES AND EQUIPMENT FURNISHED PURSUANT TO THE AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. IN NO EVENT SHALL 46 LABS OR ANY AFFILIATED PERSON OR ENTITY BE LIABLE TO CUSTOMER OR ANY AFFILIATED PERSON OR ENTITY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, RELIANCE, COST OF COVER, SPECIAL, PUNITIVE OR SIMILAR OR ADDITIONAL DAMAGES, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, INCURRED OR SUFFERED AS A RESULT OF UNAVAILABILITY, PERFORMANCE, NON-PERFORMANCE, TERMINATION, BREACH, OR OTHER ACTION OR INACTION UNDER THE AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST REVENUES OR PROFITS, LOSS OF ABILITY TO PERFORM, LOST CONTRACTS, COSTS OF THIRD-PARTY REPAIR OR REPLACEMENT, OR FAILURE OF 911 OR OTHER FEATURES, EVEN IF CUSTOMER OR ANY AFFILIATED PERSON OR ENTITY ADVISES 46 LABS OR ANY AFFILIATED PERSON OR ENTITY OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN THE EVENT A VENDOR(S) IS EMPLOYED ON BEHALF OF THE CUSTOMER, THE CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR PAYMENT TO THE VENDOR EMPLOYED WITHOUT CLAIM TO 46 LABS. 46 LABS SHALL NOT BE RESPONSIBLE FOR PAYMENT OF ANY VENDOR FEES INCURRED BY CUSTOMER OR ANY OTHER PARTY, WHETHER OR NOT SUCH FEES ARE AS A RESULT OF ERROR OR OMISSION BY 46 LABS OR ANY OTHER THIRD PARTY. IN THE EVENT 46 LABS DISPATCHES A VENDOR, LOCAL EXCHANGE CARRIER, OR OTHER TECHNICIAN ON BEHALF OF CUSTOMER, AND IT IS DETERMINED THAT THE DISPATCH WAS DUE TO A CUSTOMER, CPE, WIRING, EQUIPMENT OR OTHER CUSTOMER RELATED ISSUE, THEN THE CUSTOMER WILL BE RESPONSIBLE FOR PAYMENT OF COSTS INCURRED BY 46 LABS FOR THE DISPATCH. 46 LABS SHALL NOT BE RESPONSIBLE FOR DAMAGE TO PROPERTY OR FOR INJURY TO ANY PERSON ARISING FROM THE INSTALLATION, MAINTENANCE OR REMOVAL OF EQUIPMENT OR THE PROVISIONING OF SERVICES, AND CUSTOMER HEREBY INDEMNIFIES AND HOLDS HARMLESS 46 LABS FROM AND AGAINST ANY LIABILITIES INCLUDING ATTORNEY'S FEES ARISING OUT OF SUCH DAMAGE OR INJURY. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM 46 LABS, OR ITS EMPLOYEES, CONTRACTORS, OR AGENTS, REGARDING THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER'S REMEDIES FOR CLAIMS UNDER THIS AGREEMENT SHALL BE LIMITED TO SLA CREDITS AS DESCRIBED HEREIN.
9.2.3 Third-party Sites, Information and Content. : For certain 46 Labs Services, including but not limited to dedicated Internet access and wireless data service, Customer will be communicating with and receiving information or data to or from independently owned and operated content providers or service providers. 46 LABS IS NOT A PUBLISHER OF THIRD-PARTY INFORMATION, APPLICATIONS, OR OTHER CONTENT AND IS NOT RESPONSIBLE FOR ANY OPINIONS, ADVICE, STATEMENTS, OR OTHER INFORMATION, SERVICES OR GOODS PROVIDED BY THIRD PARTIES. Third-party content or information providers may impose additional fees. They may have differing terms of use and differing policies than those of 46 Labs. Customer is solely responsible for all fees from such third-party content or information providers and is solely responsible for adhering to the terms and conditions and policies of such third parties. Delays or omission of information or data may occur with respect to third party content or information providers. Neither 46 Labs nor its content providers, service providers, affiliates, or other third parties shall be liable for any loss or injury arising out of or caused, in whole or party, by Customer's use of any information, application or content acquired through any 46 Labs Service.
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10.1 46 Labs' Indemnification of Customer.
10.1.1 Misconduct. : 46 Labs will defend and indemnify Customer, its employees, directors, officers, and agents, from and against any damages, penalties, interest, expenses, liabilities, suit, proceeding or other claim asserted by a third-party and is caused by, arises from, or relates to damage to real or tangible personal property or personal injuries including death due to the gross negligence or willful act or omission of 46 Labs in the provision of Service by 46 Labs. This indemnification shall not apply to any entity who is a party to or an affiliate of a party to this Agreement.
10.1.2 Intellectual Property. : If a Service provided by 46 Labs becomes, or if 46 Labs reasonably believes a Service it is providing may become, the subject of a suit, proceeding or other claim by an third party alleging the Service directly infringes the U.S. patent, trademark, trade secret or copyright rights of such entity, 46 Labs shall, at its own expense and option may seek to remedy the allegations through any combination of the following: (a) procure the right for 46 Labs to continue to provide the Service; (b) modify or replace the Service with a different service that has substantially similar functionality; (c) discontinue providing or direct the cessation of any use of the Service and refund to Customer a prorated portion of any fees paid for the affected Service through the date of Service discontinuation or cessation. Additionally, if the Service is determined by a court of competent jurisdiction to have directly infringed on an entity's Intellectual Property rights, or if such claim is settled, 46 Labs shall indemnify Customer for its reasonable legal fees incurred to defend itself against such claim up to and including the time of final disposition or settlement of such claim and any payment required to be made by Customer pursuant to such judgment or settlement.
10.2 Customer's Indemnification of 46 Labs.
10.2.1 Customer will defend and indemnify 46 Labs, its employees, directors, officers and agents, from and against any damages, penalties, interest, expenses, liabilities, suit, proceeding or other claim asserted, threatened, brought by a third party that is caused by, arises from, or relates to: (a) damage to real or tangible personal property, personal injuries including death arising out of the gross negligence or willful act or omission of Customer in the use of the Service; (b) any fraud arising from Customer's use of the Service; (c) any failure of Customer to properly remit taxes on services ordered hereunder; (d) representations regarding the nature of Customer's traffic and any use, operation or resale of Service by Customer in contravention of this Agreement; (e) claims of libel or slander arising from Customer's use of the Service; (f) Customer's engagement of, or relationship or interaction with, any third party service provider.
10.3 Indemnification Notification, Procedure. : The Indemnified Party will promptly notify the Indemnifying Party in writing no later than sixty (60) days after receipt of such notification of a potential claim. The Indemnifying Party may assume sole control of the defense of such claim and all related settlement negotiations. The Indemnified Party will provide the assistance, information, and authority necessary to assist the Indemnifying Party in its obligations. Neither party may settle any such matter without the consent of the other as to any settlement that imposes an obligation on, or requires any admission by, the other party. Failure of the Indemnified Party to promptly notify the other will not relieve the Indemnifying Party of its obligations except to the limited extent such delay prejudices the Indemnifying Party.
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11.1 Third Party Service Providers. : 46 Labs is not liable for any act or omission by any third-party company or companies furnishing a portion of the Services to Customer.
11.2 Limitation of 46 Labs Liability for Direct Damages. : 46 Labs' liability to Customer for any damage, including but not limited to property damage to Customer premises, service outages or problems, and personal injury, shall in no event be greater than an amount equal to the sum of the payments made by Customer to 46 Labs during the twelve (12) months immediately preceding the event for which losses or damages are claimed. By entering into this Agreement and remaining a Customer, Customer manifests its acceptance of this limitation on direct damages as fair and reasonable.
11.3 Indirect or Consequential Damages. : Neither 46 Labs nor Customer shall be liable to the other for any indirect, incidental, exemplary, punitive, or consequential damages, whether foreseeable or not, including, but not limited to, damages from the loss of data, business goodwill or profits, savings or revenue, harm to business, whether under contract, tort, including negligence, strict liability or any other theory of liability. A party's out-of-pocket costs for damages recovered by a third party shall be deemed to be indirect damages suffered by such party, except to the extent such damages are part of a claim for which indemnification is due under Section 10.
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11.4.1 46 Labs Maximum Liability. : 46 Labs' sole liability, and Customer's sole and exclusive remedy, under this Agreement for interruption of Service or failure of equipment shall be as described in the SLA and limited to no more than the amount of total MRC charged by 46 Labs to for the Service during the period of such interruption. Under no circumstances shall an interruption of the Services be deemed a breach of the Agreement.
11.4.2 Credit Limitations. : All services are further subject to the credit limitations described in the SLA.
11.5 Delays. : 46 Labs shall not be liable to Customer for losses or damages resulting from its inability to provide Service or from any delay in meeting a scheduled Start of Service Date or a scheduled change in the Start of Service Date.
11.6 Force Majeure Events. : In no event shall either party have any claim or right against the other party for any failure of performance, except for 46 Labs' right to seek payment of all accrued fees, due to causes beyond that party's reasonable control, including, but not limited to: acts of God, earthquake, fire, explosion, vandalism, fiber optic cable cut, storm, flood or other similar catastrophes; any law, order, regulation, direction, action or request of the United States Government, or of any other government, including state and local governments having or claiming jurisdiction over either of the Parties or of any department, agency, commission, court, bureau, corporation, or other instrumentality of any one or more said governments, or of any civil or military authority; national emergencies; unavailability of materials or rights-of-way; insurrections; acts of terrorism; riots; wars; strikes; lock-outs, work stoppages or other labor difficulties; actions or inactions of third party providers or suppliers; or supplier failures, shortages, breaches or delays (individually and collectively referred to as a "Force Majeure Event").
11.7 Customer's Failure to Fulfill Obligations. : 46 Labs shall not be liable to Customer or any third party for Customer's failure to fulfill its obligations, including, without limitation, Customer: (a) obtaining, installing and maintaining all necessary equipment, materials, and supplies for interconnecting Customer or third party facilities, services, equipment or systems to Services; (b) securing all licenses, permits, approvals, rights-of-way, access rights, including ingress and egress from buildings, and other arrangements necessary to install, receive and use Services; (c) ensuring that Customer or third-party facilities, services, equipment or systems interface properly with Services; (d) that the signals delivered to 46 Labs' Service are fully compliant with industry standards and that such signals do not damage 46 Labs property or personnel, or degrade Service to other Customers of 46 Labs; and (e) Customer use of non-approved Services.
11.8 VIOLATION OF AUP. : IN NO EVENT WILL 46 LABS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES FOR ACTIONS TAKEN OR NOT TAKEN PURSUANT TO THE ACCEPTABLE USE POLICIES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR DATA, OR OTHERWISE, EVEN IF 46 LABS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY IN FAVOR OF 46 LABS IS IN ADDITION TO ANY LIMITATIONS SET FORTH IN ANY AGREEMENT BETWEEN 46 LABS AND ANY APPLICABLE USER AND WILL APPLY WHETHER THE ACTION IN WHICH RECOVERY IS SOUGHT IS BASED IN CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), OR ANY APPLICABLE LAWS.
11.9 Billing Errors. : 46 Labs' obligation with respect to any errors resulting in Customer overpayments for Service is limited to granting invoice credits equal to the dollar amounts erroneously billed. Under no circumstances will any billing error affect the Customer's obligation to pay for Services rendered and used.
11.10 Third Party. : Customer is solely responsible for its interaction and relationship with any third-party provider that it may engage for any purpose. If Customer has a dispute with a third-party service provider, Customer agrees that 46 Labs is not liable for any claims or damages arising out of or connected with such dispute. 46 Labs reserves the right, but has no obligation, to monitor any such dispute.
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12.1.1 The Term of the Agreement shall commence on the Start of Service Date and shall continue for the initial Service Order Term as set forth in the Customer's initial SO. After such initial term, the Agreement shall automatically renew for successive one (1) year terms unless terminated in writing ninety (90) days prior to the renewal date by 46 Labs or by Customer pursuant to the Notice provisions of this Agreement. Further, this Agreement shall terminate only upon the completion or termination of all associated SOs.
12.1.2 Effect of Auto Renewal on MRC. : Any Service that is automatically renewed under this Section shall be subject to an annual MRC price increase of five (5%) of the current contracted rate for the renewal term.
12.2 Termination. : 46 Labs may elect in its sole discretion to terminate this Agreement and any outstanding SO(s) immediately for any reason enumerated under Section 3.2. 46 Labs may terminate this Agreement or any SOs, at its option upon providing Customer with written notice of such election. In such event, the effective date of the termination shall be thirty (30) days from the date of such notice. 46 Labs shall not be liable to Customer or any third party for any reason for terminating or suspending Customer's use of or access to the Services. Customer may cancel the Service by emailing 46 Labs at support@46labs.com, AND by giving written notice to 46 Labs as provided in Section 12.3, with the words "Attention: Service Disconnection Request" prominently written on the outside of the envelope or in the subject line of the email, no less than forty-five (45) days prior to the effective date of such cancellation. 46 Labs shall begin the disconnection process upon receipt of notification from the Customer. Charges shall continue until 46 Labs and any underlying carriers complete the disconnection process, or forty-five (45) days, whichever is later. 46 Labs recommends Customer ensures any replacement services are operational before requesting disconnection, as 46 Labs is not responsible for any interruption or failure of service once disconnection has been requested by Customer. Once disconnection has been requested, service may disconnect at any time after forty-vie (45) days without prior notice to Customer.
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12.3 Notice.
12.3.1 Legal Notice. : Unless specified differently in this Section, all notices, demands, consents, requests, approvals, authorizations, or other communication which Customer is required or desires to give or make to 46 Labs shall be in writing and shall be effective (a) immediately upon hand delivery, (b) on the next business day if sent by a generally recognized overnight delivery service (subject to confirmation of receipt from the service), (c) on the date received if sent by United States certified or registered mail, return receipt requested or, (d) email to the address(es) listed below with receipt or reply confirmation.
By Mail to:
46 Labs
Attn: Legal
1503 E. 19th St.
Edmond, OK 73013
By E-mail to:
46 Labs
legal@46labs.com
12.3.2 Service Credits, Customer Billing Inquiries and Address Changes. : Service Credit requests, customer name and address changes, billing inquiries and requests for changes to Customer contact information should be sent to support@46labs.com.
12.3.3 Customer Notices. : Notices to Customer shall be sent to the primary contact email, Customer billing email or Customer billing mailing address as indicated on the initial Customer SO.
13 Miscellaneous Provisions.
13.1 Compliance with Law. : In conjunction with the Agreement, each Party shall at all times comply with all applicable federal, state, and local statutes, ordinances, regulations and orders of any commission or other government body that apply to the Services.
13.2 Change of Contact Information. Customer acknowledges that it is Customer's sole responsibility to supply immediate notice to 46 Labs if Customer changes any of its contact information. If at any time Customer's name or billing information changes from that which is set forth in the initial SO, Customer shall have ten (10) business days to inform 46 Labs of such changes in accordance with the notice provisions set forth in the Agreement.
13.3 Relationship of Parties. : Neither the Agreement nor the provision of Service hereunder shall be deemed to create any joint venture, partnership, or agency between 46 Labs and Customer; the Parties are independent contractors and shall not be deemed to have any other relationship. Neither Party, nor any agent or representative of either Party, shall have, or hold itself out as having the power or authority to bind or create liability for the other Party by its intentional or negligent act and no claimed act of authority shall have any binding effect.
13.4 Amendment. : The terms and conditions of this Agreement, and associated documents or agreements, may not be modified or amended other than by a document that expressly states its intention to modify this Agreement, and such document is signed by hand in ink or by commercially recognized electronic signature service by both Parties.
13.5 Service Order, Signatures. 46 Labs shall not be bound by the terms of the Agreement or any supplemental document or agreement of any kind, unless the Agreement and associated SOs are signed by hand in ink or by commercially recognized electronic signature service by an officer of the Customer.
13.6 Survivability. : Sections 2, 4.6, 6.2, 8, 9, 10, 12, 13.7 and 13.8 and any Customer obligations thereunder shall survive the completion of those performances and the Agreement's termination. These include, without limitation, the making of payments due under the Agreement.
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13.7 Governing Law, Jurisdiction. : This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without reference to its principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods ("CISG") shall not apply. Customer and 46 Labs both hereby irrevocably agree that any suit brought by either Party arising out of or relating to this Agreement shall be brought exclusively in the United States District Court for the State of Texas, and Customer and 46 Labs both hereby submit to the personal jurisdiction of such courts. The Parties both hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which either Party may raise now, or hereafter have to the laying of the venue of any such suit, action or proceeding brought in such a court and any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum. THE PARTIES HEREBY EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY A PARTY AGAINST THE OTHER PARTY RELATING TO THIS AGREEMENT. In the event an action is brought, or an attorney is retained by either Party to enforce the terms of this Agreement or to collect any money due hereunder, the prevailing Party will be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorney's fees, court costs, reasonable costs of investigation and other related expenses incurred in connection therewith.
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13.8 No Waiver. : Neither Party's failure, at any time, to enforce any right or remedy of the Agreement will be interpreted as a waiver of such Party's right to enforce each provision of the Agreement in the future. No waiver of any provision of this Agreement, or any rights or obligations of either Party under this Agreement, shall be effective, except pursuant to a written instrument signed by the Parties waiving compliance, and any such waiver shall be effective only in that specific instance and for the specific purpose stated in such writing.
13.9 Severability. : In the event any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid, illegal or unenforceable by a court with jurisdiction over the Parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intention of the Parties in accordance with the applicable law, and the remainder of this Agreement shall remain in full force and effect. The illegality or unenforceability of any provision of this Agreement does not affect the legality or enforceability of any other provision or portion of this Agreement.
13.10 Assignment. : Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Notwithstanding the former, 46 Labs may assign its rights, interest, or obligations to an Affiliate upon providing written notice to the Customer. Subject to the preceding, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
13.11 No Third-Party Beneficiaries. : Except to the extent explicitly provided, this Agreement and any associated SO is being executed for the sole and exclusive benefit of 46 Labs and Customer and is not for the benefit of any third parties. The execution of the Agreement and any associated SO shall not create any obligations or confirm any rights on any person or entity other than the Parties hereto.
13.12 Interpretation. : Neither this Agreement nor any SO may be construed or interpreted for or against 46 Labs because 46 Labs drafted any of its provisions.
13.13 Headings. : Headings contained herein are provided for reference and convenience only. Headings do not affect or limit the interpretation, contents, or terms of this Agreement.
13.14 Execution in Counterparts and by Facsimile. : The Parties hereby acknowledge that any document requiring a signature under this Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument. The Parties intend any counterpart copy signed and exchanged (including signed counterparts exchanged via e-signature, facsimile, or email) shall be fully binding as an original handwritten executed copy and all such copies together shall constitute one instrument.
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