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MASTER PRODUCTS AND SERVICES AGREEMENT
General Terms and Conditions – Effective March 1, 2014
THESE TERMS AND CONDITIONS GOVERN THE SALE OF ALL PRODUCTS AND SERVICES OFFERED BY ANCERO, AND MAY ONLY BE SUPERSEDED BY A NON-ELECTRONIC VERSION OF THESE TERMS AND CONDITIONS WHICH HAS BEEN MUTUALLY AGREED UPON AND EXECUTED BY BOTH ANCERO AND CUSTOMER. WHERE SUCH CUSTOM, NON-ELECTRONIC TERMS AND CONDITIONS EXIST, THOSE TERMS AND CONDITIONS SHALL PREVAIL. ANY ADDITIONAL OR MODIFIED TERMS AND CONDITIONS IN ANY FORMS DELIVERED BY A CUSTOMER ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS, AND NOTICE OF OBJECTION TO THEM, AS WELL AS REJECTION OF THEM, IS HEREBY GIVEN. BY ACCEPTING DELIVERY OF THE PRODUCTS AND SERVICES PROVIDED BY ANCERO, THE CUSTOMER HEREBY AGREES TO BE BOUND BY, AND ACCEPT THE APPLICABLE TERMS AND CONDITIONS OF SALE.
These General Terms and Conditions, together with all Order(s), applicable Service Guide(s), exhibits and other addenda provided to Customer from time to time, collectively constitute the Master Products and Services Agreement (“Agreement”) which is effective as of the last date that Customer places an Order (“Effective Date”) by and between Ancero LLC, a New Jersey limited liability company, (“Ancero”) and Customer. Ancero and Customer are collectively referred to herein as the “Parties” or individually as a “Party”.
“Agreement” has the meaning set forth above.
“Applicable Taxes” has the meaning set forth in Section 5, below.
“Confidential Information” has the meaning set forth in Section 14.1, below.
“Customer” means a person or company that places an order for Product(s) or Service(s).
“Customer Content” has the meaning set forth in Section 11.1, below.
“Disclosing Party” has the meaning set forth in Section 14.1, below.
“Earliest Initiation Date” has the meaning set forth in Section 18.5.2(e), below.
“Effective Date” has the meaning set forth above.
“Exhibit” means Order addenda that further defines the Product(s) or Services(s).
“First Meeting” has the meaning set forth in Section 18.5.1, below.
“Force Majeure” has the meaning set forth in Section 13, below.
“Hazardous Materials” has the meaning set forth in Section 12.2, below.
“Loss of Data” means any and all loss and/or damage arising out of the use of or inability to use any Product(s) or Service(s) including, without limitation, loss or corruption of Customer Content, first and/or third party business data, loss of business profits, business interruption and/or other pecuniary loss.
“Monthly Charge” or “MRC” has the meaning set forth in Section 4.2, below.
“Non-Recurring Charge” or “NRC” has the meaning set forth in Section 4.1, below.
“Order” means any fully, mutually executed order form, statement of work, Exhibit or, as provided below, Quote, detailing, among other things, the Product(s) and Service(s) ordered by Customer and Customer’s financial obligation with respect to such Product(s) and Service(s), timelines, milestones, roles and responsibilities.
“Order Effective Date” means the last date on which an Order is fully, mutually executed by a Party.
“Product” means any product (“Product”) provided by Ancero to Customer as such Product is described or specified in a Service Guide and/or Order.
“Quote” means a proposal issued by Ancero to Customer, which details, among other things, the Product(s) and Service(s) which may be ordered by Customer and Customer’s financial obligation with respect to such Product(s) or Service(s), timelines, milestones, roles and responsibilities; and, further, any Quote(s) which by its terms may be accepted by a Customer, and which is accepted by Customer, as evidenced by Customer’s unconditional execution and delivery of such Quote(s) to Ancero within the time period specified in the Quote, shall constitute an Order(s) notwithstanding that same has not been executed by Ancero.
“Receiving Party” has the meaning set forth in Section 14.1, below.
“Service” means any service (“Service”) provided by Ancero to Customer as such service is described or specified in a Service Guide and/or Order.
“Service Guide” means any supplement(s) and/or schedule(s) to these General Terms and Conditions, which are posted at www.ancero.com/serviceguides, each containing additional terms and conditions that govern the provisioning and use of a Product or Service and may include, by way of example and not limitation, a description of the Product(s) or Service(s), associated cost and fee schedules, and any applicable service level objective(s), service credit(s) and acceptable use policy(ies). Ancero reserves the right to amend Service Guide(s) from time to time during the Term of this Agreement and Customer agrees such amendment(s) will be effective on a prospective basis commencing on the date such amended Service Guide(s) is/are posted at www.ancero.com/serviceguides. Customer shall periodically review the Service Guide library for changes relevant to the Service(s) to which they are subscribed.
“Term” means the period of time in which Ancero provides Product(s) or Service(s) to Customer pursuant to an Order and any renewals thereto.
“User” means any and all employees, agents, vendors, representatives, customers or subscribers of Customer, its parent, subsidiaries or affiliates, or any other person or entity who directly or indirectly uses or accesses any Product(s) or Service(s) provided to Customer by Ancero. Customer agrees that Customer will cause User(s) to comply with the terms of this Agreement and Customer acknowledges and agrees that Customer will be responsible for User(s) use of the Product(s) and Service(s).
2. STRUCTURE OF AGREEMENT. From time to time, the Parties will execute one or more Order(s) for Ancero to provide Product(s) or Service(s), and each such Order will automatically be incorporated into this Agreement and be subject to these General Terms and Conditions and any applicable Service Guide.
3. TERM; TERMINATION; PRICING; PROFESSIONAL SERVICES
3.1. Unless earlier terminated as provided herein, this Agreement commences on the Effective Date, and continues through the latest expiration of all Order(s) subject to this Agreement or until terminated by either Party on not less than sixty (60) days prior written notice to the other Party specifying the termination date, except that such notice, when provided by Customer, shall have no force or effect if there are any active, pending or otherwise outstanding Order(s) either as of the date such notice is given or on the date specified therein as the termination date.
3.2. The Term for each Product or Service begins on the related Order Effective Date and remains in effect until the expiration of the initial period specified in the applicable Order. The prices listed in an Order, or an associated eQuote or Exhibit, will take precedence over any pricing set forth in any other applicable service publication, proposal or quotation. The pricing schedules for each Product or Service shall remain in effect until the expiration of the applicable Order Term. Except as set forth in an Order, no promotion, credit, discount or waiver set forth in any other applicable service publication, proposal or quotation will apply. Upon expiration of the Term specified in an Order for each Product or Service where a renewal Term is specified, such Product(s) and Service(s) will automatically renew for additional periods as specified in the Order unless one Party provides the other with written notice that it is terminating the Order, and such notice is to be delivered not less than sixty (60) days prior to the end of the Term then in effect. If no renewal Term provisions are specified in an Order, at the end of the Order Term, Customer may continue use of Product(s) and Service(s) under a month-to-month service arrangement at the prices, terms and conditions in effect on the last day of the Order Term; provided, however, that Customer must notify Ancero in writing of its intent to continue use of Product(s) and Service(s) on a month-to-month basis not less than sixty (60) days prior to the end of the Term then in effect. Ancero may change pricing, terms or conditions upon thirty (30) days’ prior notice to Customer during any such month-to-month Term. Unless specified elsewhere in this Agreement, or as specified in an Order or a Service Guide, either Party must provide no less than thirty (30) days prior written notice to terminate use of a Product or Service during any such month-to-month Term.
3.3. PROFESSIONAL SERVICES
3.3.1. Professional Services will be rendered by Ancero on behalf of Customer as follows:
(a) Customer may request ad-hoc Professional Services on an as-needed, time and materials (T&M) basis. Resource time is tracked and managed in our Professional Services Automation system and labor is invoiced on actual services rendered. T&M requests require verbal or written approval by an authorized Customer representative. It is the Customer’s responsibility to notify Ancero of its authorized representative(s).
(b) Customer may request Professional Services for larger, project-based engagements. Such engagements require a signed eQuote and Statement of Work (“SOW”) to initiate service and require prepayment and/or a deposit as defined in the eQuote and SOW. Project labor may either be invoiced on a fixed price basis with milestone billing as specified in the eQuote and SOW, or estimated where resource time is tracked and managed in our Professional Services Automation system and labor is invoiced on actual services rendered.
(c) Customer may request Professional Services for Project Management and IT Management Consulting services, including assistance in the coordination and management of other third party vendors. Such services are billed either on a fixed price basis with milestone billing as specified in the eQuote and SOW, or estimated where resource time is tracked and managed in our Professional Services Automation system and labor is invoiced on actual services rendered. In cases where Ancero is asked to coordinate and assist in the management of third party vendors, Ancero cannot guarantee the performance of such third party vendors, but will endeavor to provide quality assurance as necessary. Ancero reserves the right to accept or reject any service requests based on suitability, scope and fitness for a particular purpose.
3.3.2. Rates. Professional Services shall be rendered at the then current labor rate of the resource performing the service. Ancero reserves the right to make adjustments to service rates at its sole discretion, and shall endeavor to provide Customer with a minimum of thirty (30) days advance notice of such rate changes.
3.3.3. Service Hours. Services provided during standard business hours will be billed at the applicable rate of the resource performing the service. Services provided outside of standard business hours will be billed at the extended or premium rate of the resource performing the service.
(a) Standard Service Hours – Monday to Friday, 8:30am – 5:00pm
(b) Extended Service Hours – All Non-Standard Service Hours
(c) Premium Service Hours – Holidays Observed by Ancero
3.3.4. Forms of Service. All services rendered by Ancero will fall into one of two distinct service categories, as follows:
(a) On-Site – Field services rendered at a Customer site or other designated facility
(b) Remote – Helpdesk, depot repair and remote administration support services
3.3.5. Time Accounting, Minimum Charges. All support services provided by Ancero will be tracked by incident and billed at the rate of the resource performing the service. All labor will be accounted for in 30 minute increments of time, and minimum charges will apply, per incident, per engineer, as follows:
(a) On-Site services are subject to a two (2) hour minimum charge
(b) Remote services are subject to a one (1) hour minimum charge
3.3.6. Trip Charges. Trip charges are billed in 30 minute increments of time, at the rate of the resource providing the service. Trip charges apply to each resource responding to a field service request, and apply to all instances of on-site service provided by Ancero. Trip charges are based on the one-way travel time that it takes for support personnel to initially arrive at a customer site.
3.3.7. Expense Reimbursement. Ancero reserves the right to require reimbursement for the cost of all hotels, meals, tolls, parking, public transportation and similar expenses associated with all services provided. When assessed, expense reimbursement will be pre-paid and charged back in addition to applicable labor charges.
3.3.8. Team Service Approach. Ancero provides support utilizing a team approach that relies on the diverse skill, abilities and experiences of its engineering staff to resolve problems in the most efficient and effective manner possible. Ancero retains the right to freely substitute engineering personnel when necessary in order to ensure that service goals are met. Changes in the assignment of engineering personnel will be made by Ancero in its sole discretion and will not be subject to any form of Customer approval.
3.3.9. Subcontracting. In cases where a request for Professional Services falls outside our direct service area, Ancero may utilize third parties from our partner service network to perform such services under the direction and supervision of Ancero. Ancero reserves the sole right in selection and use of such partner resources and will not be subject to any form of Customer approval.
3.3.10. Product Sales. All materials-only requests by a Customer require a signed eQuote and are subject to the pricing information, availability disclaimer and warranty provision found in Sections 11 and 12 below.
3.3.11. Pricing Information; Availability Disclaimer. All product pricing is subject to change by the manufacturer and distributor, and Ancero reserves the right to make adjustments to product and service pricing at all times for reasons including, but not limited to, changing market conditions, product discontinuation, restricted product availability, manufacturer price changes and errors in advertisements. All orders are subject to product availability and Ancero will not be liable for any delays associated with product availability.
3.3.12. Warranties. Customer understands that Ancero is not the manufacturer of any Product(s) purchased by Customer from Ancero, and the only warranties offered are those of the manufacturer, not Ancero. In purchasing the Product(s), the Customer is relying on the manufacturer’s specifications only, and is not relying on any statements, specifications, or other illustrations representing the Product(s) that may be provided by Ancero. In connection with Service(s), neither affiliates of Ancero nor any third party service providers are agents of Ancero, and Ancero has no obligation or liability arising from any services performed by, or any warranty, if any, made by such service providers. Ancero and its affiliates hereby expressly disclaim all warranties either express or implied, related to services sold or services provided by third parties or affiliates of Ancero, including, without limitation, any warranty of merchantability or fitness for a particular purpose. This disclaimer does not affect the terms of the manufacturer’s warranty, if any.
3.3.13. Block Time Purchases; Retainers. If mutually agreed upon by both parties, Ancero shall perform Professional Services under a pre-paid block of time or a retainer whereby the Customer authorizes such Service(s) up to a certain limit. Pre-paid blocks of time have a one (1) year Term as measured from the date of Order. Any unused time remaining at the date of expiration of a block of time shall be forfeited. Ancero shall endeavor to provide time accounting details of available balances and request additional block-time purchases and retainer fees in advance of expiration to avoid interruption in service or forfeiture of unused block hours.
4. INVOICING AND PAYMENT.
4.1. Non-Recurring Charge. Non-recurring charge(s) (“NRC”) may include, without limitation, deposits, pre-payments, equipment, shipping and installation charges, and the timing of payment of any NRC may be specified in a Service Guide or Order. If the timing of payment of an NRC is not specified elsewhere, Ancero may invoice such NRC upon or after the Order Effective Date and Customer will pay to Ancero the applicable NRC(s) within thirty (30) days of the date of the invoice. If an Order replaces a prior Order(s), the NRC(s) applicable to the replacement Order is in addition to any NRC(s) applicable to such prior Order(s).
4.2. Monthly Charge. Beginning on the Order Effective Date of each Product or Service, Customer will pay to Ancero the monthly charge (“MRC”) as specified in the applicable Service Guide or Order. If the timing of the payment is not specified elsewhere, Ancero will invoice Customer for the applicable MRC and Customer will pay to Ancero such MRC, in advance, within thirty (30) days of the date of the invoice.
4.3. Other Charges.
4.3.1. If applicable, Ancero will invoice Customer and Customer will pay invoices for any other charges as set forth in this Agreement, including without limitation in an applicable Service Guide and/or Order, within thirty (30) days of the date of such invoice.
4.3.2. Customer acknowledges Ancero’s preferred method of payment is by ACH, check or EFT. Payment by credit card may be accepted on a select basis if agreed upon in advance by Ancero. Customer acknowledges that credit card companies withhold a percentage of the amount charged as a credit card fee. Customer agrees that, if Customer pays Ancero by credit card, and the credit card fee was not included as an expense reimbursement on the original invoice, Customer will reimburse Ancero, no later than five (5) business days following notice from Ancero, the difference between the amount due from Customer to Ancero, which Customer charged on its credit card, and the amount paid to Ancero by Customer’s credit card company, and such reimbursement shall be made by wire transfer or check, subject to collection.
4.4. Late Payments. All invoices will be deemed received by Customer, if sent by first class U.S. mail, three (3) business days after mailing or, if invoices are made available electronically, the next business day after same is made available. All invoices must be paid in accordance with their terms without setoff or deduction, and late payments will accrue interest on the unpaid sum as of the date of the invoice at the lesser of (i) the highest legal rate of interest permitted in the State of New Jersey or (ii) one and one-half percent (1.5%) per month.
4.5. Currency. Payment will be made in U.S. Dollars.
4.6.1. If Customer, in good faith, disputes any charges billed by Ancero, Customer will, at a minimum, pay the undisputed amount in accordance with this Section 4 and provide to Ancero written notice specifically identifying the disputed charge(s) and the reason(s) for such dispute. Any payment withheld by Customer may incur related late payment fees in accordance with Section 4.4 above. Further, Customer must present such notice within 30 days of the date of the applicable invoice or Customer’s right to dispute the invoiced charge(s) shall be deemed waived.
4.6.2. Ancero will review the basis for any such dispute and provide Customer with notice of the resolution. If the dispute is resolved in favor of Customer, Ancero will reverse any amounts that were invoiced in error. If the dispute is resolved in Ancero’s favor and Customer has withheld the disputed amount, then Customer shall pay to Ancero within five (5) business days all properly due charges together with accrued late payment fees in accordance with Section 4.4 above.
5. Taxes. In addition to the charges set forth in applicable Service Guide(s) and Order(s), Customer shall be responsible for paying all Applicable Taxes in accordance with the applicable invoice for taxing jurisdictions in which Ancero holds the appropriate taxing authorization. “Applicable Taxes” mean all taxes, levies, fees, duties, charges, surcharges, assessments and withholdings of any kind or nature levied or imposed upon Ancero or Customer, arising from or relating to the provision by Ancero of Product(s) or Service(s) to Customer (including, without limitation, sales, excise taxes, universal service fees, any other FCC or state PUC fees, and any state or local utility or telecommunications taxes), together with any penalties, fines or interest (resulting from Customer’s failure to pay Applicable Taxes hereunder after being invoiced for such) by any U.S. federal, state, provincial or local government, public authority, including its agencies, commissions and tribunals, or their designated agents, having jurisdiction over this transaction. Customer shall not be responsible for, and Applicable Taxes shall not include, taxes on any property of Ancero that is not used to provide Service(s) to Customer or on net income of Ancero. Customer is solely responsible for directly filing all forms, and directly paying all Applicable Taxes on Order(s) shipped to taxing jurisdictions where Ancero does not hold the appropriate taxing authorization(s). Customer must claim exemption from any Applicable Taxes at the time of purchase, and must provide the necessary supporting documentation in writing.
6. PRODUCTS: SECURITY INTEREST; TITLE AND RISK OF LOSS; ACCEPTANCE AND RETURNS.
6.1. Ancero may procure Product(s) on behalf of Customer through various manufacturers and distributors, both domestic and international. Customer hereby grants Ancero, and Ancero will retain, a purchase money security interest and lien on any and all of the Customer’s right, title and interest in Product(s) provided to Customer by Ancero, wherever same may be located, and all replacements or proceeds of and from such Product(s), until all invoices for the applicable Product(s) and associated Service(s) are paid in full, including any late charges and costs of collection. Customer hereby consents to Ancero recording such liens and/or financing statements as Ancero deems necessary to protect Ancero’s security interest in such Product(s) and Customer agrees, at Customer’s sole cost and expense, within three (3) business days of request, to duly execute, acknowledge and deliver such instruments to confirm or perfect such rights and, failing to do same, hereby irrevocably appoints Ancero as Customer’s Attorney-in-Fact to do same in Customer’s place. At the end of the Term of an Order associated with a Product, and any associated Service, where Ancero has recorded a lien against such Product and Ancero has received payment in full under such Order, promptly following receipt by Ancero of Customer’s request that such lien be removed, Ancero will provide to Customer a release of lien which Customer may record.
6.2. As an accommodation to Customer, and whether or not any deposits or pre-payments may be required, Ancero may agree to pre-pay for the cost of such Product(s), together with all shipping, handling and related charges, then invoice the Customer for all such costs and expenses. Customer acknowledges that this is an accommodation, and agrees that Customer is responsible for all related costs and expenses, and that the transfer of title and risk of loss to all such Product(s) will occur as follows:
(a) For Product(s) which are drop-shipped directly to Customer from a manufacturer or distributor, title to such Product(s), and risk of loss for damage during shipment, passes to the Customer upon shipment from the manufacturer’s or distributor’s facility. Customer acknowledges that freight carriers are typically only liable for damage when the damage is indicated on the bill of lading before the recipient signs for a shipment. Therefore Customer agrees to thoroughly inspect the outside and contents of all cartons received and, if damage is found or the shipment is wrong or incomplete, Customer may choose to refuse the shipment or note details of any damage, missing items or any other irregularities on the bill of lading and save a copy of the bill of lading, along with the outside container and inside packing material, to assist Customer in making a claim against the freight carrier.
(b) For Product(s) shipped from a manufacturer or distributor to an Ancero facility (i) for later delivery to a Customer by Ancero or a freight carrier delivery service chosen by Ancero, or (ii) when the Product is to be picked up by the Customer from an Ancero facility, title to such Product(s), and risk of loss or damage during shipment, passes from Ancero to the Customer immediately upon the earlier of (a) shipment from Ancero’s facility via freight carrier, or (b) receipt of same by Customer whether delivered by Ancero or picked up by or on behalf of Customer. On receipt, Customer should immediately examine all Product(s) and shall, within three (3) business days of such receipt, notify Ancero of any claim regarding receipt of wrong or incomplete Product(s) and/or claim of damages based on condition, grade or quality of the Product(s) received, setting forth in detail the basis of such claim. Failure of Customer to notify Ancero of any claim within the specified three (3) business day period, or to set forth a detailed basis for such claim, will constitute Customer’s irrevocable acceptance of the Product(s).
6.3. If Customer timely and completely notifies Ancero of a claim regarding receipt of wrong or incomplete Product(s) and/or claim of damages based on condition, grade or quality of the Product(s):
(a) Ancero may assist Customer in the return to the manufacturer or distributor of a Product which is unused and undamaged, subject to the following terms and conditions: (1) if prior approval from the manufacturer or the distributor or both is required before a return of any Product, such approval must be received before the Product will be accepted by Ancero; and (2) Customer agrees in writing to (i) accept all risk of loss and damage to any Product(s) being returned and (ii) assumes all costs and expenses related to such return, including without limitation any restocking fee.
(b) Ancero reserves the right to require Customer to return Product(s) directly to a manufacturer or distributor, in which event Customer agrees it (i) will comply with all shipping instructions provided by Ancero, Customer acknowledges that failure to comply with the specific return instructions provided by Ancero may result in refusal of the returned Product, and (ii) accepts all risk of loss and damage to any Product(s) being returned and assumes all costs and expenses related to such return, including without limitation any restocking fee.
6.4. Notwithstanding anything contained in this Section 6 to the contrary, under any of the following circumstances, Ancero will not assist Customer in the return of Product(s), will return the Product(s) to the Customer, and the Customer will remain liable for all costs and expenses related to the Product(s), including without limitation the purchase price and shipping charges, if any one or more of the following is true:
(a) The Product is not returned in the original, unopened, undamaged and unmarked packaging and/or is incomplete or missing any components, manuals, cables, warranty cards, static bags or other items that were included with the original Order as received by Customer;
(b) The condition of the Product is in any way misrepresented by Customer;
(c) The Product has been opened, used or has been damaged;
(d) The Product being returned is identified as not working on arrival, but later tested and then found to be fully functional; or
(e) The Product is received by Ancero more than five (5) business days after the date a return authorization was granted by the manufacturer and/or distributor, as applicable.
7. DEFAULT; REMEDIES; SUSPENSION OR TERMINATION OF PRODUCT OR SERVICE.
7.1. The material breach of any term or condition of this Agreement (including without limitation any term or condition of any Order or Service Guide) that remains uncured for five (5) business days for breach of payment obligations, or thirty (30) days for all other breaches, after delivery to the breaching Party of written notice of such breach, shall give the non-breaching Party the right to terminate this Agreement or any applicable Order(s) immediately upon written notice to the breaching Party, provided that if the breach is other than a breach of a payment obligation and is of a nature or involves circumstances reasonably requiring more than 30 days to cure, the time period to cure shall be extended provided the breaching Party promptly commences and proceeds diligently to cure the breach, and the non-breaching Party shall retain all rights and remedies under the Agreement and at law notwithstanding any such termination for default.
7.2. If Customer is in default, as set forth above, then, after expiration of the applicable cure period and in addition to any other rights and remedies that Ancero may have under this Agreement or by law, Ancero may, without further notice, suspend Service(s), disconnect Product(s) and/or Service(s) and/or repossess any Product(s), equipment and other materials used to provision the Service(s) or Product(s) sold to the Customer by Ancero and, with respect to any Product(s), equipment and other materials so repossessed by Ancero, Ancero may, without further notice, remove and store or dispose of same at Customer’s expense, sell same at any public or private sale, or assume ownership of same and, notwithstanding anything contained in this Agreement to the contrary, Ancero shall have no liability whatsoever to Customer, User(s) or anyone claiming by or through Customer, and Customer will hold Ancero harmless for any losses, costs, claims or any other matter or thing arising, or which may arise, as a result of such suspension, disconnection and/or repossession and any subsequent removal, disposal, sale or assumption of ownership and, provided further, Customer will remain responsible to perform its obligations under this Agreement including, without limitation, its payment obligations.
7.3. Notwithstanding anything contained in this Agreement to the contrary, should Customer be entitled to receive a service credit due to an unexcused failure by Ancero to meet any service level objective(s) specified in a Service Guide or Order, then such service credit shall be Customer’s sole and exclusive remedy, and Ancero’s sole and exclusive liability, with respect to Ancero’s failure to meet such service level objective(s) and such failure shall not be deemed to be a breach of the Agreement by Ancero.
7.4. Notwithstanding anything contained in this Agreement to the contrary, if Customer or User(s) (i) commits a fraud upon Ancero, (ii) uses the Product(s) or Service(s) to commit a fraud upon another party, (iii) unlawfully uses the Product(s) or Service(s), (iv) abuses or misuses Ancero’s network, Product(s) or Service(s), (v) interferes with another Customer’s use of Ancero’s network, Product(s) or Service(s), or (vi) attempts, without Ancero’s prior written consent, to rebrand and/or sell the Product(s) and Service(s) to third party(ies), Ancero may, under such circumstances, immediately terminate or suspend use of any Product(s) or Service(s) and, if the activity materially and adversely affects the entire Agreement, immediately terminate or suspend the entire Agreement, by providing Customer with only as much advance notice as is reasonably practicable under the circumstances, and, provided further, Customer will remain responsible to perform its obligations under this Agreement including, without limitation, its payment obligations.
8. REPRESENTATIONS AND WARRANTIES; COMPLIANCE WITH THE LAWS.
8.1. Customer acknowledges and agrees that Ancero may subcontract all or part of its performance obligations hereunder, including without limitation maintenance and installation, to third parties, and Ancero may do so without notice to Customer, although Ancero will endeavor to advise Customer of such circumstance, and any such advice may be provided orally or in a writing delivered electronically. Ancero warrants that any Services to be provided to Customer will be at a professional level of quality conforming to generally accepted industry standards and in compliance in all material respects with all applicable laws and regulations. Customer further acknowledges that Ancero is not the manufacturer of any Product(s) and the only warranties offered to Customer with respect to such Product(s) are those provided by the manufacturer, not Ancero; therefore, in purchasing Product(s), Customer agrees to rely solely on the manufacturer’s specifications, not any statements, specifications, or other illustrations representing the Product(s) that may be provided by Ancero, and such warranties, if any, offered by the manufacturer of such Product(s). Ancero agrees, on request of Customer, to pass through to Customer any original equipment manufacturer warranties to the extent Ancero is permitted to do so under the terms of its agreements with the manufacturer, its agents and representatives. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, ANCERO DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, RELATED TO PRODUCT(S) AND/OR SERVICES, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.2. Each Party represents and warrants to the other that (i) it is duly organized, validly existing and in good standing under the laws of the state of its organization, (ii) it has all requisite power and authority to enter into and perform its obligations under this Agreement, including without limitation all Order(s), (iii) it will comply with all applicable federal, state and local laws, statutes, rules and regulations in connection with the provisioning and use of the Product(s) and Service(s), and (iv) this Agreement, including without limitation all Order(s), when executed, are the legal, valid and binding obligation of such Party.
9.1. Ancero agrees to indemnify, defend and hold Customer, its officers, directors, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable attorneys’ fees and expenses) by reason of any claims or actions by third parties against Customer for (i) bodily injury or death, and damage, loss or destruction of any real or tangible personal property, to the extent such third party claims arise out of or relate to Ancero’s gross negligence or willful misconduct in the performance of Ancero’s duties or obligations under this Agreement and/or (ii) infringement or misappropriation by Ancero of any intellectual property rights in connection with this Agreement.
9.2. Customer agrees to indemnify, defend and hold Ancero, its officers, directors, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable attorneys’ fees and expenses) by reason of any claims or actions by third parties against Ancero for (i) bodily injury or death or damage, loss or destruction of any real or tangible personal property, to the extent such third party claims arise out of or relate to Customer’s gross negligence or willful misconduct, (ii) infringement or misappropriation by Customer or User(s) of any intellectual property rights in connection with this Agreement, and/or (iii) Customer’s or User’s use of the Product(s) or Service(s) in violation of this Agreement including, without limitation, in connection with defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity, or spamming or any other tortious or illegal conduct.
10. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING UNDER A PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (TORT, CONTRACT OR OTHERWISE) WILL EITHER PARTY OR ITS SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON, INCLUDING WITHOUT LIMITATION USER(S): (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR UNAUTHORIZED ACCESS TO OR ALTERATION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE(S) OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING EXCLUSIONS WILL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT. EXCEPT FOR LIABILITY ARISING UNDER A PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS, OR FOR UNDISPUTED UNPAID BUT ACCRUED CHARGES OR FEES, NEITHER PARTY SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF TWELVE (12) MONTHS OF PAYABLE MRC FOR THE APPLICABLE PRODUCT OR SERVICE AND, FURTHER, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA. THE PARTIES AGREE THAT THE FOREGOING REPRESENTS A FAIR ALLOCATION OF RISK AND IS A MATERIAL INDUCEMENT TO THE PARTIES ENTERING INTO THIS AGREEMENT.
11. RISK OF LOSS.
11.1. Customer Content. Except as otherwise provided in an Order or applicable Service Guide, Customer is solely responsible for all Customer and User’s data, including without limitation first and third party content, residing on equipment (collectively herein referred to as “Customer Content”) and, without limiting the generality of the foregoing, Customer shall be solely responsible (i) for backup and restoration of such Customer Content, and (ii) for acquiring, maintaining and reporting all software licenses for any programs or applications on or running through equipment and, further, (iii) all right, title and interest in and to such Customer Content will, as between Customer and Ancero, be and remain vested in Customer. Notwithstanding the foregoing, in order to provide Product(s) or Service(s), Ancero may require, and Ancero will be given, access, view, monitor and other rights with respect to Customer Content as necessary and appropriate for Ancero to provide the Product(s) or Service(s), enforce the terms of this Agreement and/or to cooperate with any investigation, inquiry or other activity by any governmental, quasi-governmental or regulatory agency. ANCERO WILL NOT BE LIABLE OR RESPONSIBLE IN ANY WAY FOR LOSS, CORRUPTION OR DESTRUCTION OF CUSTOMER CONTENT, REGARDLESS OF REASON, INCLUDING THAT WHICH RESULTS FROM HUMAN ERROR. THIS EXCLUSION APPLIES WHETHER OR NOT THERE WAS PHYSICAL DAMAGE TO OR PHYSICAL LOSS OF TANGIBLE PROPERTY ON WHICH THE DATA IS OR WAS KEPT.
11.2. Property. Customer shall be liable to Ancero for any damage to Ancero equipment caused by Customer, Customer’s equipment or Customer’s or User’s contractors, agents or employees and, unless otherwise specifically provided herein to the contrary, Customer assumes all risk of loss and/or damage to Product(s) and any equipment or property used to provision the Service(s). Ancero shall have no liability to Customer for damage to Customer property unless such damage is solely due to the gross negligence or willful misconduct of Ancero and, in such event, the Parties agree such liability shall be limited to, and in no event will exceed, actual, reasonable and documented losses up to $250,000.00 in the aggregate.
12. ACCESS; SAFE WORKING ENVIRONMENT.
12.1. Access. Except as otherwise stated in an Order, Customer will have the location(s) where the Product(s) or Service(s) are to be performed ready in accordance with a mutually agreed schedule for Ancero to perform its work, and Customer will, at Customer’s sole cost and expense, timely procure and provide to Ancero access to such location(s) and equipment, together with all rights and permissions necessary to use ancillary equipment and space within such location(s), as reasonably required by Ancero for the delivery of Product(s) and Service(s) and for Customer’s connections to Ancero’s network, whether such property and/or equipment is Customer controlled or controlled by third parties, such as Customer’s landlord, for purposes which may include, without limitation, construction, installation, inspection, repair, maintenance, replacement and removal of access lines, equipment and network facilities. Further, Customer will, at Customer’s sole cost and expense, (i) obtain any necessary licenses, permits and consents, including without limitation, easements, rights-of-way, and other property rights, approvals and permissions, and (ii) furnish to Ancero any conduit, holes, wire-ways, wiring, plans, equipment, space, power/utilities and other items, all as Ancero reasonably requires for the delivery of Product(s) and Service(s). Ancero will comply with Customer’s or its landlord’s access and security rules and regulations, and Ancero will coordinate with and, except in an emergency, will rely on Customer to give or obtain consent for Ancero to enter prior to Ancero entering upon Customer locations, which consent shall not be unreasonably withheld. Ancero will not be responsible for any delay in Customer or others providing access to a location and no such delay will excuse Customer from its responsibility to perform its obligations under this Agreement including, without limitation, Customer’s payment obligations.
12.2. Safe Working Environment. Customer will ensure that the location where, and the area in which, Ancero installs, maintains or provides Product(s) and Service(s) are suitable and safe working environments, free of Hazardous Materials and reasonably suitable for the operation and provisioning of the Product(s) and Service(s). “Hazardous Materials” mean any substance or material capable of posing an unreasonable risk to health, safety or property or whose use, transport, storage, handling, disposal or release is regulated by any law related to pollution, to protection of air, water or soil or to health and safety. Ancero shall have no obligation to perform work at a location that is not a suitable and safe working environment or to handle, remove or dispose of Hazardous Materials and no resulting refusal to work will excuse Customer from its responsibility to perform its obligations under this Agreement including, without limitation, Customer’s payment obligations.
13. FORCE MAJEURE. Neither Party will be considered in breach of this Agreement nor liable under this Agreement for any delays, failures to perform, damages or losses, or any consequence thereof, caused by or attributable to an event of “Force Majeure,” which is defined as any cause beyond the reasonable control of the Party claiming relief, including without limitation the action by a governmental authority (by way of example, and not limitation, a moratorium on any activities related to this Agreement or changes in government codes, ordinances, laws, rules, regulations, or restrictions occurring after the Effective Date or Order Effective Date, as applicable), third-party labor dispute, fiber cut, failure of a third party to recognize a permit, authorization, license or other agreement, actions or inactions of a third party, sabotage, flood, earthquake, fire, lightning, epidemic, war, act of terrorism, riot, civil disturbance or act of nature. Notwithstanding anything set forth in this Agreement to the contrary, in the event of delay(s) which are within Customer’s control or within the control of others for whom Customer is responsible, such delays will not relieve Customer of its responsibility to perform its obligations under this Agreement including, without limitation, Customer’s payment obligations.
14.1. Each Party agrees that the terms of this Agreement and all information furnished to it by the other Party, including maps, pricing, financial terms, network routes, design information, methodologies, specifications, locations or other information to which it has access under this Agreement, are deemed the confidential and proprietary information or trade secrets (collectively referred to as “Confidential Information”) of the Disclosing Party and will remain the sole and exclusive property of the Disclosing Party (the Party furnishing the Confidential Information being herein referred to as the “Disclosing Party” and the other Party referred to as the “Receiving Party”). All Confidential Information relating to or obtained from either Party in connection with or as a result of this Agreement or the performance of the Product(s) or Service(s) shall be held in strict confidence by the recipient to the same extent and with at least the same security as the recipient protects its own confidential or proprietary information and shall be used by the recipient only for the purposes of performance under this Agreement.
14.2. Neither Party shall disclose, publish, release, transfer or otherwise make available Confidential Information of, or obtained from, the other in any form to, or for the use or benefit of, any person or entity without the Disclosing Party’s consent; provided, however, that each Party is permitted to disclose relevant aspects of the other’s Confidential Information to their officers, directors, employees, auditors, attorneys and representatives with a need to know and who agree to be bound by the terms of this Section 14.
14.3. Customer agrees not to, and not to direct others to, reverse engineer or otherwise attempt to, or direct others to attempt to, uncover the technological aspects and principles of any Product(s) or Service(s) through the analysis of its structure, function, or operation where the intent of such an effort is to try and replicate or similarly duplicate the original Product(s) or Service(s).
14.4. Notwithstanding the foregoing:
(a) Receiving Party shall have no obligation under this Agreement with respect to any Confidential Information that (i) Receiving Party can demonstrate was already known to it at the time of its receipt hereunder; (ii) is or becomes generally available to the public other than by means of Receiving Party’s breach of its obligations under this Agreement; (iii) is independently obtained from a third party whose disclosure violates no duty of confidentiality; or (iv) is independently developed by or on behalf of Receiving Party without use of or reliance on any Confidential Information furnished to it under this Agreement; and
(b) To the extent Receiving Party is required to disclose such information in the context of any administrative or judicial proceeding, Receiving Party may do so only to the extent required to comply with such required disclosure, provided that, to the extent permitted by applicable law, prior written notice of such disclosure and an opportunity to oppose or limit disclosure is given to Disclosing Party, and such disclosed information shall continue to be safeguarded as confidential unless and until it falls under an exception set forth in Section 14.4(a) above.
15. PUBLICITY. Neither Party may issue any advertising or other publicity material using the other Party’s name or marks or describing in any way the terms of this Agreement without first receiving the other Party’s written consent as to form and content, which consent may not be unreasonably withheld, conditioned, or delayed.
16. ASSIGNMENT. Neither Party will assign or transfer this Agreement without the other Party’s prior written consent, except that either Party may assign this Agreement upon notice and without the other Party’s consent to a person, firm, corporation, partnership, association, trust or other entity (i) that controls, is controlled by or is under common control with the assigning Party or (ii) which purchases all or substantially all of its assets or stock; provided that the assignee assumes all liabilities hereunder in writing prior to the effectiveness of such assignment. Any assignment or transfer by Customer without the required consent is void and is considered a material breach of this Agreement. Upon any permitted assignment, the assigning Party will remain jointly and severally responsible for the performance under this Agreement, unless released in writing by the other Party, and this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns.
17. NOTICES. Except as otherwise provided herein, all notices, including without limitation, demands, requests and other communications required or permitted hereunder (not including invoices and notices of a purely operational nature), must be in writing and will be deemed given: (i) when delivered in person, (ii) one business day after deposit with a reputable overnight delivery service for next day delivery, (iii) on the day accepted or refused when sent by registered or certified mail, return receipt requested, or (iv) the 5th business day after deposit in the United States mail, postage prepaid, and in each case addressed to the recipient Party at the address set forth on first page hereof. Notwithstanding the foregoing, for purely operational notices such as regarding installation and maintenance, the Parties may provide notices to the other’s Operational Notice contact as provided on the first page of this Agreement.
18.1. Relationship of Parties. The relationship between the Parties hereunder is not that of partners or agents for one another and nothing contained in this Agreement may be deemed to constitute a partnership, joint venture or agency agreement between them.
18.2. No Third-Party Beneficiaries. The covenants, undertakings, and agreements set forth in this Agreement are solely for the benefit of and enforceable by the Parties or their respective successors or permitted assigns and is not intended to and does not create any third party beneficiary rights whatsoever.
18.3. Non-Solicitation. Neither Party during the Term of the Agreement, nor for a period of six (6) months after expiration of such Term, shall, directly or indirectly, whether for its own benefit or for the benefit of any other person, solicit or induce, or endeavor to solicit or induce any employee of the other Party without the written consent of the other Party, except that either Party may solicit or induce any employee of the other Party who has responded directly to a bona fide recruitment drive, either through an employment, recruiting or like agency or advertisement in the general circulation press and not directly or indirectly as a result of any solicitation or inducement by the other Party.
18.4. Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania, without regard to conflicts of laws provisions thereof. In any action based upon, arising from, or relating to this Agreement each of the Parties irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in Philadelphia, Pennsylvania.
18.5. Dispute Resolution. Except for those rights and remedies provided elsewhere in this Agreement, with respect to all other controversies or claims arising out of or relating to this Agreement the Parties agree to use the dispute resolution procedures set forth in this Section 18.
18.5.1. Either Party may give the other Party written notice of any dispute not resolved in the normal course of business. Within ten (10) business days after delivery of such notice, the receiving Party shall submit to the other a written response. The notice and response shall include with reasonable detail (i) a statement of each Party’s position and a summary of arguments supporting that position, and (ii) the name and title of the executive who will represent that Party and of any other person who will accompany the executive. Within twenty (20) business days after delivery of the notice, the executives of both Parties shall meet at a mutually acceptable time and place and shall attempt in good faith to resolve such dispute. Unless otherwise agreed in writing by the negotiating Parties, the above-described negotiation shall end at the close of the first meeting of executives (“First Meeting”), although such closure shall not preclude continuing negotiations, if desired. The Parties agree that all offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the Parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation. At no time prior to the First Meeting shall either side initiate litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the Parties. However, this limitation is inapplicable to a Party if the other Party refuses to comply with the requirements set forth in this Section 18.5.1. Further, all applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in this Paragraph 18.5.1 are pending and for fifteen (15) calendar days thereafter. The Parties agree to take such action, if any, required to effectuate such tolling.
18.5.2. If the Parties do not resolve the dispute in accordance with the terms set forth in Section 18.5.1 above within thirty (30) days of the First Meeting, or any reasonable extension of such period as agreed upon by the Parties, then the matter will proceed to mediation as follows:
(a) The Parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS located in Philadelphia, Pennsylvania, or its successor or closest location to Philadelphia, Pennsylvania, for mediation, and if the matter is not resolved through mediation, then either Party may commence an action in a court having jurisdiction in Philadelphia, Pennsylvania.
(b) Either Party may commence mediation by providing to JAMS and the other Party a written request for mediation, setting forth the subject of the dispute and the relief requested.
(c) The Parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The mediator must have at least fifteen (15) years of legal experience, which may include service as a judge, and at least ten (10) years of experience in the field of telecommunications services. The Parties agree that they will participate in the mediation in good faith and that they will share equally in its costs.
(d) All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the Parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
(e) Either Party may initiate litigation with respect to the matters submitted to mediation at any time following the initial mediation session or at any time following forty five (45) days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”). The mediation may continue after the commencement of litigation if the Parties so desire.
(f) At no time prior to the Earliest Initiation Date shall either side initiate litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the Parties. However, this limitation is inapplicable to a Party if the other Party refuses to comply with the requirements of Section 18.5.2(c) above.
(g) All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until fifteen (15) days after the Earliest Initiation Date. The Parties will take such action, if any, required to effectuate such tolling.
18.6. Headings; Severability; Interpretation. The headings in this Agreement are strictly for convenience and do not amplify or limit any of the terms, provisions or conditions hereof. In the event any term of this Agreement is held invalid, illegal or unenforceable, in whole or in part, neither the validity of the remaining part of such term nor the validity of the remaining terms of this Agreement will be in any way affected. Each Party acknowledges that it has had the opportunity to review and negotiate the terms of this Agreement and, therefore, agrees that any ambiguities shall not be interpreted any more strictly against one Party or the other.
18.7. No Implied Waiver. Except as expressly provided herein, (i) no failure or delay of either Party in the exercise of any right or remedy given to such Party hereunder (unless the time specified in this Agreement for exercise of such right or remedy has expired), or the waiver by any Party of any condition hereunder for its benefit, shall constitute a waiver of any other or further right or remedy of such Party, and (ii) no single or partial exercise of any right or remedy shall preclude any other or further exercise thereof.
18.8. Execution in Counterparts. This Agreement may be executed in counterparts, including by facsimile transmission, each of which when executed and delivered is an original, but all the counterparts together constitute the same document.
18.9. Order of Precedence. If any conflict or contradiction exists between these General Terms and Conditions and a Service Guide, the terms of the Service Guide will control. If any conflict or contradiction exists between a Service Guide and the terms of an Order, the terms of the Order will control. If any conflict or contradiction exists between these General Terms and Conditions and the terms of an Order, the terms of the Order will control.
18.10. Entire Agreement; Amendments. This Agreement, including all Order(s), Exhibit(s), addenda attached hereto and any applicable Service Guide(s), together constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior negotiations, understandings and agreements, whether oral or written, with respect to such subject matter hereof. Except as otherwise provided herein, this Agreement may be amended only by a written instrument executed by the Parties.
18.11. Survival. Those provisions of this Agreement, which by their nature should survive the termination of this Agreement, shall survive the termination of this Agreement, including without limitation Sections 4 (Invoicing and Payment), 5 (Taxes), 7 (Default; Remedies), 9 (Indemnification), 10 (Limitation of Liability), 11 (Risk of Loss) and 14 (Confidentiality).
18.12. Binding Effect. This Agreement, and each of the Party’s respective rights and obligations under this Agreement, shall be binding upon and shall inure to the benefit of the Parties and each of their respective, permitted successors and assigns.