PreMIER and Customer Outage Credits

Transcription

1 TERMS These Terms are incorporated into, and constitute an essential part of, the Master Service Agreement (the Agreement ) between Customer and PREMIER COMPANIES, LLC ( PREMIER ). Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Agreement. 1. Service Interruption. (a) Outage Credits - General. In the event Customer experiences any interruption in its Service that it believes to be material, Customer shall immediately notify PREMIER s Network Operations Center at and request that PREMIER open a trouble ticket to investigate. Before notifying PREMIER, Customer shall ascertain that the interruption is not within Customer's control (e.g. Customer equipment, power, wiring, networking, etc.) and Customer shall be liable to reimburse PREMIER for all costs incurred by PREMIER in connection with an interruption that was within Customer s control. Customer shall retain each trouble ticket number opened on its behalf. Premier s mean time to repair ( MTTR ) goal is two (2) hours. Notwithstanding the reporting of an interruption in its Service, Customer shall only be entitled to a credit where PREMIER determines that each of the following conditions exist: (i) the interruption ( Outage ) exists for a period of time of not less than two (2) continuous hours and renders the Service unavailable (as defined in the Specification) during that entire time period (and which is not a scheduled outage); (ii) a trouble ticket is opened by the Customer with PREMIER at the commencement of the Outage; and (iii) a request for credit is made in writing to PREMIER within thirty (30) days of the date the trouble ticket was opened. Customer acknowledges that it is reasonable to base Customer s entitlement to credits on each of the conditions identified above and it is reasonable to limit Customer s recovery to the outage credit described below ( Outage Credit ). Customer waives all rights to damages or to other relief in the event of an Outage. The length of each Outage shall be calculated in hours and shall include fractional portions thereof. An Outage shall be deemed to have commenced upon verifiable notification thereof by Customer to PREMIER. Each Outage shall be deemed to terminate upon restoration of the affected Service as evidenced by appropriate network tests by PREMIER. All Outage Credits shall be credited on the next monthly invoice for the affected Facility and the total of all Outage Credits applicable to or accruing in a given month shall not exceed the amount payable by Customer to PREMIER for that same month for such Facility. Except as provided in Section 7 below, the Outage Credits described in this Section of the Agreement shall be the sole and exclusive remedy of Customer in the event of any Outage. (b) Outage Credits for Broadband Notwithstanding the foregoing, the Outage Credit formula that shall apply to Broadband Service shall be as follows: Outage Credit = [(Hours of Outage - 2 hours)/720 Hours] x Monthly charge of Affected Facility The length of each Outage shall be calculated in hours and shall include fractional portions thereof.

2 2. Credit. Customer s execution of the Agreement signifies Customer s acceptance of PREMIER s initial and continuing credit approval procedures and policies as a condition of PREMIER providing Services. PREMIER reserves the right to withhold initiation of full implementation of Services under the Agreement pending initial satisfactory credit review and approval thereof which may be conditioned upon terms specified by PREMIER including, but not limited to, security for payments due hereunder in the form of a cash deposit via wire transfer, guarantee, irrevocable letter of credit from a financial institution, or other forms of security acceptable to PREMIER, in its sole discretion. In instances where Customer is required to provide PREMIER with security in the form of a cash deposit, the cash deposit shall bear interest at the rate for telephone security deposits set by the Public Utility/Service Commission in the state where Customer is headquartered. In certain situations, PREMIER shall require Customer to pre-pay for all Services provided by PREMIER in cash, via wire transfer. Initial prepayment amount for service is one and one-half (1.5) months estimated usage. Regardless of the initial prepayment amount, it shall be the responsibility of Customer to always maintain sufficient prepayment credit balance to cover weekends and holidays. If Customer expects usage of Service to increase, it must make appropriate adjustments to amount of prepayment. PREMIER retains the right to suspend service without notice or liability to Customer if at any time Customer does not have sufficient prepayment credit balance to cover estimated usage at any time. Upon request by PREMIER at any time, Customer agrees to provide financial statements or other indications of financial circumstances. As may be determined by PREMIER, in its sole discretion at any time, if the financial circumstances or payment history of Customer is, or becomes unacceptable, PREMIER may require a new or increased deposit, pre-payment, guarantee or irrevocable letter of credit at PREMIER s discretion, to secure Customer s payments for the remainder of the Term and such deposit, pre-payment, guarantee or irrevocable letter of credit shall be provided within five (5) days of written request. Failure of Customer to provide the requested security pursuant to the Agreement shall constitute a breach of the Agreement and PREMIER may suspend or terminate Services until such time as the required security is received. 3. Non-Disclosure and Publicity. Neither Party shall disclose to any third party the terms and conditions of the Agreement without the prior written consent of the other Party. Each Party (the Receiving Party ) acknowledges that in the course of performing its obligations under the Agreement, the Receiving Party and its employees, agents, consultants and representatives may be exposed to or acquire information ( Confidential Information ) which is proprietary to or confidential to the other Party (the Disclosing Party ). The Receiving Party agrees to hold, and to require its employees, agents, consultants and representatives to hold, such Confidential Information in strict confidence and not to copy, reproduce, sell, assign, license, market, transfer, give or otherwise disclose such information to third parties or to use such information for any purposes whatsoever, without the prior, express written permission of the Disclosing Party. The Receiving Party shall prevent any unauthorized use or disclosure of any such Confidential Information. Without limitation of the foregoing, the Receiving Party shall advise the Disclosing Party immediately in the event the Receiving Party has reason to

3 believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Section, and will cooperate in seeking injunctive relief against any such person. 4. Force Majeure. PREMIER shall not be liable for any failure of performance hereunder due to causes beyond its reasonable control, including but not limited to acts of God, fire, explosion, vandalism, fiber optic cable cut, storm 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 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; insurrections; riots; wars; or strikes, lock-outs, work stoppages or other labor difficulties. 5. Internet Service and IP Addresses. 5.1 Internet Services are designed exclusively for data Internet access. PREMIER makes no representation, guarantee or warranty of any kind or nature regarding the suitability of PREMIER s Internet Services for any use other than for data Internet access. PREMIER SPECIFICALLY AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE INTERNET SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, INCLUDING BUT NOT LIMITED TO USE OF INTERNET SERVICES FOR VOIP OR VIDEO OVER THE INTERNET. 5.2 Customer may request that PREMIER obtain IP addresses and assign Internet access space for the benefit of Customer during the Term (subject to availability). PREMIER and/or Premier s underlying carriers will route IP addresses on PREMIER s and/or such carriers respective networks. Customer hereby agrees and acknowledges that Customer does not have rights and ownership interest in any IP addresses obtained by Premier and/or any of its underlying carriers, and upon termination of the Agreement, Customer agrees that all rights to access and right to use such IP addresses shall terminate immediately. 6. No Right To Intellectual Property. The Agreement confers no right to use the name, service marks, trademarks, copyrights, or patents of either Party except as expressly provided herein. Neither Party shall take any action, which would compromise the registered copyrights or service marks of the other. 7. 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. 8. No Third Party Beneficiaries. The Agreement is being executed for the sole and exclusive benefit of the Parties hereto and is not for the benefit of any third parties. The execution hereof shall not create any obligations or confer any rights on any person or entity other than the Parties hereto.

4 9. Obligations of Customer. Customer acknowledges that it is Customer s sole responsibility to supply immediate notice to PREMIER 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 below, Customer shall have five (5) days to inform PREMIER of such changes in accordance with the Notice provisions set forth in the Terms/Conditions. 10. Relationship of Parties. Neither the Agreement nor the provision of Service hereunder shall be deemed to create any joint venture, partnership or agency between PREMIER 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. 11. Network Abuse. Customer is prohibited from abusing the networks of PREMIER and its underlying carriers. For a complete description of PREMIER s network abuse policy, the terms and conditions of which are incorporated by this reference as if copied herein, please refer to our website at Fraud. Customer is solely responsible for fraudulent data transmitted utilizing the Services. For a complete description of PREMIER s fraud policy, the terms and conditions of which are incorporated by this reference as if copied herein, please refer to our website at Attorneys Fees and Costs. In the event PREMIER seeks to enforce any of the terms or conditions of this Agreement or protect any of its rights or privileges hereunder, either informally or through formal legal action, Customer shall be liable for all costs incurred by PREMIER as a result thereof, including but not limited to reasonable attorney's fees and court costs (if applicable). 14. CPNI. PREMIER acknowledges that it has a duty, and Customer has a right, under federal and/or state law to protect the confidentiality of Customer's proprietary network information ( CPNI ). Such CPNI includes information about the Services purchased by Customer from PREMIER, Customer account activity (for example, telephone numbers) and charges incurred by Customer. With Customer s consent, PREMIER may use this information for marketing purposes to offer Customer the full range of products and services available from PREMIER that may be different from the type of Services Customer currently buys from PREMIER. In addition to DSL and other dedicated internet services, PREMIER and PREMIER affiliate s offer other services, including voice, collocation, hardware (by sale or lease) and managed services. A more complete description of PREMIER companies and product and service offerings is available at or Customer may contact its PREMIER account manager. PREMIER may also share Customer information with its affiliates, agents and partners to offer the services and products described above. PREMIER requires Customer s consent for PREMIER and its affiliates, agents and partners to use this information to offer the services and products described above. By signing the

5 Agreement and taking no further action, Customer gives PREMIER Customer s consent to use and disclose Customer CPNI as described above. Customer may refuse CPNI consent by signing the Agreement but then notifying PREMIER in writing of Customer s decision to withhold Customer s consent. Customer s consent or refusal to consent will remain valid until Customer otherwise advises PREMIER. Customer s decision to approve or disapprove use or disclosure of Customer CPNI as described in this section will not affect PREMIER s provision of Service to Customer. A more complete description of PREMIER s CPNI Policy is set forth at the contents of which are hereby incorporated in these Terms as if copied herein verbatim. 15. CPE Rental Maintenance, Support, and Repair. If Customer has rented CPE from Premier or unique service provider for each circuit, then Customer shall allow Premier reasonable access to the CPE as required in providing the Service ordered by the Customer. Equipment provided for service may be new or recertified. All CPE and CPE provider service purchased from Premier is subject to the terms and conditions set forth in the Manufacturer s or Publisher s warranty, end-user license, or agreement applicable to such CPE or CPE provider service, with no warranty of any kind from Premier. Customer shall reimburse Premier, on a time and materials basis as documented in an invoice, for the entire cost to repair and/or replace CPE in the event of (a)) misuse, (b) failure to exercise reasonable care, (c) altering original Premier configuration, (d) damage, (e) theft, or (f) disaster. If Premier CPE requires maintenance not caused by one of the events set out in the sentence above, Premier or its agents shall either arrange to repair the CPE at Customer s premises or ship an equivalent pre-configured replacement to Customer. If replacement CPE is shipped to Customer, Customer shall return the faulty CPE to Premier within ten (10) days of receiving the replacement CPE or pay for such CPE. Customer will not receive compensation for downtime associated with CPE replacement or repair. In addition, if Customer has rented CPE, Customer shall return (at Customer s own expense) Premier CPE to Premier within ten (10) days of termination. If this CPE is not returned in good working condition to Premier Customer shall be invoiced and pay for this CPE. Should Customer terminate CPE rental prior to fulfillment of initial or renewal Service Order Term then Premier may charge Customer a thirty percent (30%) restocking fee, as calculated according to the original purchase price of rented CPE. 16. CPE Purchase. All CPE and CPE Provider Service purchased from Premier is subject to the terms and conditions set forth in the Manufacturer s or Publisher s warranty, End- User license or agreement applicable to such CPE or CPE Provider Service, with no warranty of any kind from Premier. Should customer receive purchased CPE that is damaged or dead on arrival Customer must notify Premier Customer Care within ten (10) days of receipt. Returns will only be accepted on brand new factory-packaged products within thirty (30) days of the date CPE was shipped. All products must be fully complete including all original manufacturer boxes with the UPC code and packing materials, all manuals, blank warranty cards, accessories and any other documentation included with the original shipment. Products returned in used or altered condition will not be accepted. After thirty (30) days from initial product ship date, all sales are final. Customer is

6 responsible for shipping charges to the Premier distribution center for all products being shipped for return or exchange. Customer is responsible for all risk of loss and damage to products being shipped for return or exchange. Should Customer desire to return or exchange purchased CPE, pursuant to the above conditions, then Customer must Customer Care at to request a Return Materials Authorization (RMA). All returns and exchanges will incur a thirty percent (30%) restocking fee, as calculated according to the original purchase price. If the RMA is in response to CPE delivered dead on arrival or damaged, and said CPE is found to be operating within manufacturer specifications upon return, said CPE shall be subject to the restocking fee outlined above. 17. Deposit, Credit, Rate Increases, etc. At its sole discretion, Premier may require a security deposit to continue provisioning of Service. After the Initial Term, Premier may increase pricing upon at least thirty (30) days written notice. At any time, Premier may pass on to Customer any price increases from underlying service providers with at least thirty (30) days written notice. All rates and charges are subject to change immediately in the event there are mandated surcharges or taxes imposed by federal, state or governmental agencies. Notwithstanding the foregoing, in the event of any regulatory or governmental changes ( Regulatory Activity ), Premier reserves the right, at any time and without liability, to: (i) pass through to Customer all, or a portion of, any changes or surcharges directly or indirectly related to such Regulatory Activity; (ii) modify the Service, rates (including any rate guarantees), promotions, terms and/or conditions of this Agreement in order to conform to such action; or (iii) if such Regulatory Activity materially and adversely impairs the provision of any or all Services under the Agreement, as reasonably determined by Premier, terminate the Agreement and/or any affected Service and related SOF. 18. Billing. Premier retains the right to bill, including any amended or corrected billing, for the Service(s) for a period of up to twelve (12) months, commencing from the date the billed Service(s) were provided to Customer. Premier shall retain such billing rights for this twelve (12) month period notwithstanding any prior billing to Customer for the same period(s) and regardless of any otherwise conflicting billing conditions in this Agreement. Customer agrees that for the duration of this twelve (12) month period, Premier shall not be deemed to have waived any rights with regard to billing for the provided Service(s) that are subject to this period, nor shall any legal or equitable doctrines apply, including estoppel or laches. 19. Additional Charges (if applicable). If applicable, the following is a non-exclusive list of items for which Premier may impose additional charges: Changes of IP Addresses Service Reinstatement Missed Appointment Rejected Credit Card NSF Check Relocation of Service Upgrade

7 Downgrade 20. Inside Wiring. The availability of inside wiring installation (if applicable) is dependent upon a number of factors, including but not limited to service address and LEC availability. Any inside wiring provided by Premier s underlying providers(s) may incur additional fees to the charges listed in the Service Order Form. Any request for inside wiring or wiring extension for this service will be provided on a best-effort basis only. In many cases, the customer's Local Exchange Carrier (LEC) will not extend wiring beyond the Minimum Point of Entry ( MPOE ) as determined by the LEC. In all such cases it will be the customer's responsibility to provide any needed internal wiring or extensions (and required conduit, facilities, power, etc) to the circuit required to provision service unless the customer has EXPLICITLY otherwise ordered this service from Premier. 21. Special Construction Charge. When a Customer s location has insufficient facilities needed to support the Service, it will be necessary for the underlying provider(s) to add facilities which may require an additional special construction charge." In the event this occurs, Premier will notify the Customer, via , of the cost of these additional special construction charges, if available and if any, as well as the estimated time to complete the work. The Customer must, via , agree to pay these additional special construction costs within three (3) business days. If Customer fails to do so, Premier will cancel the order for lack of facilities and the Agreement will terminate without liability. 22. IP Addresses. Customer acknowledges that Premier or its underlying providers(s) retains title at all times to the IP addresses assigned to Customer in connection with the ordered Service. Upon IP address reassignment or expiration, cancellation or termination of the Agreement, Customer shall relinquish any IP addresses or address blocks assigned to Customer by Premier or its underlying carrier(s) and shall perform all acts reasonably requested by Premier to return to Premier full use of such IP addresses and address blocks. 23. Premier s Discretion to Terminate Services. In the event Premier determines, in its sole discretion, that Customer s ongoing use of Service(s) or the specific method or technology utilized by the Customer places Premier s network, other customers, partners or the overall businesses of each in jeopardy, Premier reserves the right to terminate Service(s) immediately without notification. 24. Scope of Services. During the Term, Premier shall be the provider to Customer for broadband procurement, management and billing services. a. Quoting: Premier will provide Customer with a branded portal which will provide location information and inventory, quote request and pricing control, order management status, trouble ticket tracking, and network monitoring capability. Premier will return quotes to Customer based on the following SLA schedule:

8 i. 10 locations or less 3 business days ii. 11+ locations 3-5 business days b. Provisioning: Premier will facilitate the provisioning of all broadband services, as well as provide coordination with Customer IT personnel, to ensure services are delivered in a timely fashion and when they were committed. Customer will have access to the Premier Customer Advocacy Team, who will assist via our call center with provisioning questions, mitigations, billing questions, etc. c. Monitoring: Premier will provide Managed Network Services (MNS) for each Broadband circuit provided by Premier, (excluding any Broadband service provided by a one of our wireless service providers), that will include cyclical pinging of the public IP address and logging of all attempts and responses. A failed response will result in notifications being sent to user-defined persons via . Premier will open a ticket for outages and work to resolve the issue until restored. Service SLAs will be calculated on each circuit and reported on. In the event of a site that has continued false positive due to customers equipment being turned off or unplugged, Premier will remove that site from our MNS until such time that Customer will guarantee that the CPE will remain on 24/7. d. Service Management: Premier will supply Customer with a single toll free number to contact for all service related issues. That same toll free number will also be used for any billing disputes.