STANDARD TERMS AND CONDITIONS WITH SERVICE LEVEL AGREEMENT
The following STANDARD TERMS AND CONDITIONS (“Terms”) are the terms and conditions under which Syringa Networks, LLC (“Syringa Networks”) agrees to sell its services (“Services”) to a purchaser (“Purchaser”) of such Services where such Purchaser has not entered into a Master Services Agreement with Syringa Networks.
THE FOLLOWING IS A LEGALLY BINDING AGREEMENT BETWEEN PURCHASER AND SYRINGA NETWORKS WITH RESPECT TO SERVICES. EACH PURCHASER EXPRESSLY REPRESENTS AND WARRANTS THAT (i) THE PURCHASER HAS READ, UNDERSTOOD, ACCEPTED AND AGREED TO EACH AND EVERY ONE OF THE TERMS SET FORTH BELOW; (ii) IS AT LEAST 18 YEARS OF AGE; (iii) HAS THE POWER AND AUTHORITY TO ENTER INTO THE TERMS.
The Terms will become binding upon Syringa Networks for any Service Order only when the Services are delivered to Purchaser. The Terms shall be immediately binding upon Purchaser upon its placement of any Service Order, regardless of how such Service Order is placed. Any deviations from these Terms are not valid unless expressly confirmed in a signed writing by Syringa Networks. The parties reject any and all terms and conditions that are supplemental to these Terms unless expressly approved in a signed writing by Syringa Networks. No course of prior dealing, business practices (whether existing, past or future) of Syringa Networks with respect to sales of Services through online, offline or other channels or means, or industry practices, will modify, supplement or explain the Terms used herein.
ARTICLE 1- DEFINITIONS
1.1 Meaning. Words shall have their normal or common meanings, except as otherwise defined in this Agreement:
(a) Affiliate: An entity that controls, is controlled by, or is under common control with, either Syringa Networks or Purchaser. “Control” is the ability to affect, directly or indirectly, the policies, management and operations of an entity through ownership of voting securities, by contract, or otherwise.
(b) Agreement: These Terms, including incorporated Addenda, Exhibits, Schedules, Appendices and other documents, as well as any amendments made by the Parties.
(c) Circuit: A telecommunications facility connecting two or more Purchaser locations.
(d) Early Termination Liability: The charges due from Purchaser to Syringa Networks for the termination of any Service ordered pursuant to this Agreement prior to the end of the applicable Service Term.
(e) Emergency Maintenance: Maintenance which, if not accomplished promptly by Syringa Networks, could result in damage to Syringa Networks’ Network or a degradation or loss of Service to Purchaser or other Syringa Networks customers, as determined by Syringa Networks in its sole discretion.
(f) Exhibit: A document (including appended Schedules or other attachments) that is appended to and made part of this Agreement and pertains to a particular product, including without limitation any and all Exhibit A Service Orders.
(g) Governmental Charges: Charges, both retroactive and prospective, that Syringa Networks is required or permitted to collect from Purchasers in connection with the furnishing of Service by Syringa Networks. The charges result from the application, enforcement or interpretation of existing, new or revised laws or regulations, actions taken by federal, state, local or foreign regulatory authorities, or judicial acts or decisions (collectively, “Governmental Activity”) that directly or indirectly impose costs on Syringa Networks. Governmental Charges include, but are not limited to, those arising out of local, state, federal, foreign and third party actions, programs or requirements relating to Universal Service, number portability, TRS, E911, access, reciprocal compensation and franchising.
(h) Network: The telecommunications network of one of the Parties, as applicable.
(i) Off-Net Service or Type 2 Service: Service where one or more of the locations at which Service is provided is not served directly by Syringa Networks’ Network, thereby requiring that a portion of Service be furnished by a third party service provider. When Syringa Networks provides Off-Net Service, the terms, conditions and pricing is done on an individual case basis (“ICB”) and will be subject to the requirements of the underlying service provider for that part of the Service it provides.
(j) On-Net Service: Service where all locations at which Service is provided are served directly by Syringa Networks’ Network, allowing the entire Service to be furnished by Syringa Networks.
(k) Planned Service Outage: A Service Outage caused by scheduled maintenance or by upgrades made to Syringa Networks’ Network.
(l) Point of Presence (POP): A specific location within a Local Access Transport Area (LATA) where Service originates or terminates.
(m) Point of Termination: A location at which Syringa Networks’ Service responsibilities end and Purchaser’s responsibilities begin. A Point of Termination may be the demarc where Syringa Networks and Purchaser interconnect at Purchaser Premises, a local exchange carrier’s central office, or a long-distance carrier’s POP identified on Exhibit A.
(n) Premises: A physical address at which Service is provided and identified as a Point of Termination or Service location in a Service Order.
(o) Purchaser: The person, firm, corporation or other entity that orders Service and is responsible for the payment of all charges for Service, as well as compliance with applicable requirements set forth in this Agreement.
(p) Service: Syringa Networks-provided telecommunications or related service described in an Exhibit, a Schedule or a Service Order. Service may include entrance cables or drop wires terminating in a Syringa Networks distribution panel (DSX) situated on Purchaser Premises.
(q) Service Order or Exhibit A: A Service request set forth on an “Exhibit A” form that specifies the type and quantity of Service desired, Premises addresses, Points of Termination, protocols, requested Start of Service Date, and other information needed to provision Service.
(r) Service Outage: An interruption or degradation of Service.
(s) Service Request Date: The Service availability date requested by Purchaser in a Service Order.
(t) Start of Service Date: The date Service is first available for use by Purchaser, which date may be an accepted Service Request Date or the date Syringa Networks notifies Purchaser of Service availability.
(u) Taxes: Amounts Syringa Networks is required or permitted by federal, state, local or foreign taxing authorities to collect from Purchaser in connection with the furnishing of Service. Taxes include, but are not limited to, personal property taxes on property used to provide Service and sales, use, receipts, telecommunications, excise, utility, or other similar transaction-based taxes, however designated, imposed directly on the Service or upon Syringa Networks as a result of its provision of Service. “Taxes” does not include any tax based on Syringa Networks’ net income, net worth, capital structure or payroll.
ARTICLE 2 - SERVICE; OBLIGATIONS/LIMITATIONS
2.1 Service. Syringa Networks will provide, and Purchaser will receive, the Service or Services as set forth in an Exhibit A and such subsequent Exhibit As as the Parties may mutually agree. Syringa Networks shall not be required to provide any Service for which it has not received a signed Exhibit A and signed billing information schedule from Purchaser. Syringa Networks will be deemed to have accepted such Exhibit A at such time as Syringa Networks signs the Exhibit A. Notwithstanding the foregoing, any Exhibit A not signed by Syringa Networks will be deemed valid and binding upon the Parties upon commencement and acceptance of the Services ordered pursuant to such Exhibit A.
2.2 Availability of Facilities.
(a) Service is offered and furnished subject to the availability of all necessary facilities, including those acquired by Syringa Networks from or through third parties. Syringa Networks may limit or allocate Service, if necessary, due to facilities availability, taking into account Syringa Networks’ then-current and projected capacity and the reasonable expectations of its existing and future customers.
(b) Except as expressly provided otherwise in an Exhibit or Service Order, Syringa Networks, following the provision of reasonable notice to Purchaser, may: (1) alter the methods, processes or suppliers by or through which it provides Service; (2) discontinue furnishing a feature or supporting an application associated with Service; (3) change the facilities used to provide Service; or (4) substitute comparable Service for that being furnished to Purchaser.
(c) Except as expressly provided otherwise in an Exhibit or Service Order, the facilities used to provide Service will be of Syringa Networks’ exclusive choosing. In no event will title to those facilities vest in Purchaser or any other individual or entity.
2.3 Equipment and Access to Premises.
(a) Syringa Networks will own and control all Syringa Networks equipment necessary to provide the Service, which will remain Syringa Networks’ personal property regardless of where located or attached (“Syringa Networks Equipment”). Syringa Networks may upgrade, replace or remove Syringa Networks Equipment, regardless of where located, so long as the Services continue in effect as set forth herein. Purchaser may not alter, move or disconnect Syringa Networks Equipment and is responsible for any damage to, or loss of, Syringa Networks Equipment caused by Purchaser’s breach of this provision or as the result of Purchaser’s negligence or willful misconduct. Syringa Networks has no obligation to install, maintain or repair any equipment owned or provided by Purchaser, unless otherwise agreed to in a writing executed by the Parties. If Purchaser’s equipment is incompatible with the Service, Purchaser is responsible for any special interface equipment or facilities necessary to achieve compatibility. Syringa Networks shall not be liable for any failure to provide or maintain any Service is such failure is the result of a lack of access rights as required hereunder.
(b) Syringa Networks may require access to Purchaser’s premises to provision, install, inspect, maintain and repair the Services and the Syringa Networks Equipment. Purchaser must provide Syringa Networks with a contact and/or help desk number that can be reached at all times. Purchaser must also provide reasonable access rights and/or rights of way from third parties, space, power and environmental conditioning as may be required for installation and maintenance of the Syringa Networks Equipment at Purchaser’s premises.
(c) If Purchaser intends to connect the Services to facilities that it does not own, it must provide Syringa Networks with and maintain (for the Service Term) a current letter of authorization and carrier facility assignment, as applicable.
(d) If Purchaser requests that Syringa Networks perform work associated with Purchaser’s side of the Point of Demarcation, such as demarcation extensions, preparation of Purchaser’s premises, testing of Purchaser’s equipment or facilities, inside wiring and/or maintenance work on Purchaser’s equipment, facilities or wiring, and Syringa Networks agrees to perform such work, Purchaser shall be responsible for paying Syringa Networks a time and materials charge associated with performance of the work.
2.4 Delays; Non-performance. Syringa Networks will not be liable to Purchaser or others with respect to any: (a) delay in meeting a Service Request Date; or (b) inability to provide Service after the Start of Service Date, except to the extent set forth in this Agreement.
2.5 Purchaser Information. Purchaser must provide all information necessary to provision Service, and/or such other information reasonably requested by Syringa Networks relating, among other things, to Purchaser’s application or use of Service.
ARTICLE 3 - BILLING; PAYMENT; FINANCIAL STANDING
3.1 Billing. Monthly recurring charges are billed in advance; usage charges are billed in arrears; and non-recurring charges may be billed in advance or in arrears, as agreed in any Service Order. If Service is made available on a day other than the first day of a monthly billing period, or if Service is discontinued on a day other than the last day of a monthly billing period, monthly recurring charges will be prorated for the monthly billing period.
3.2 Purchaser Payment Obligation. Except as provided in Section 3.5 with respect to disputed amounts or as set forth on any Exhibit, Purchaser must pay all invoiced charges for Service without deduction or setoff within thirty (30) days of the date of an invoice (“Payment Period”). Unless otherwise permitted by Syringa Networks, payment must be made by check or wire transfer in accordance with instructions provided by Syringa Networks. If payment is made by check any restrictive endorsements or statements placed on checks will not be binding on Syringa Networks.
3.3 Late Payments.
(a) Interest. Except with respect to amounts disputed in good-faith by Purchaser, compounded interest shall accrue on invoiced charges not paid within the Payment Period as follows: (i) all sums remaining unpaid between one (1) and fifty nine (59) days after the expiration of the Payment Period shall accrue interest at the rate of one and one-half percent (1.5%) per month (or the maximum allowed by law, if less) from the expiration of the Payment Period until the date payment is made; and (ii) if such sums remain unpaid for sixty (60) or more days after the expiration of the Payment Period, such sums shall accrue interest at the rate of three percent (3%) per month (or the maximum allowed by law, if less) from the expiration of the Payment Period until the date payment is made. Interest due hereunder shall be referred to herein as the “Default Rate of Interest.” In addition, Purchaser may be required to reimburse Syringa Networks for all reasonable costs incurred in connection with collection activities, including attorneys’ fees and court costs.
(b) Default Payments. In addition to the default interest set forth above, if Purchaser defaults in the payment of any sum due hereunder, Purchaser shall pay to Syringa Networks a late charge equal to five percent (5%) of the overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Syringa Networks will incur by reason of late payment of Purchaser. Acceptance of such late charge by Syringa Networks shall in no event constitute a waiver of Purchaser’s default with respect to such overdue amount, nor prevent Syringa Networks from exercising any of the other rights and remedies granted hereunder.
(c) Order of Application of Payments. All payments hereunder shall be applied first to fees, charges, including late charges, attorney's fees and costs, if any, then to interest and then to principal (with the oldest outstanding principal amounts being the first to be paid).
3.4 Purchaser Financial Standing. Upon a good faith determination by Syringa Networks that a change has occurred in Purchaser’s financial condition, Syringa Networks may request information from a reporting agency to enable Syringa Networks to assess Purchaser’s credit history and current credit standing. Purchaser hereby consents to all such inquiries. Based on the information acquired, Syringa Networks may change its billing arrangement with Purchaser including, without limitation, requiring weekly payments or a deposit of up to two (2) times Purchaser’s aggregate monthly invoicing for the most recently invoiced monthly billing period.
3.5 Bill Disputes. To dispute an invoice, Purchaser must notify Syringa Networks by submitting its dispute as provided in Section 15.1, which dispute must include billing information, Circuit number(s), and any opened trouble ticket number(s), along with a full explanation of the basis of the disputed charges. Except as provided in an Exhibit, Purchaser, in good faith, may withhold the disputed amount but, nevertheless, must pay the undisputed remainder of the invoice within the Payment Period. No charge may be disputed more than sixty (60) days after the date of the invoice on which a charge appears. Any Purchaser payment of a charge timely disputed and in the manner required will not deprive Purchaser of its right to dispute the charge. Syringa Networks will investigate Purchaser’s claim with a view toward resolving the dispute within thirty (30) days of Syringa Networks’ receipt of Purchaser’s notice. Following an investigation in which Purchaser co-operates with Syringa Networks, Syringa Networks may in good faith reject Purchaser’s claim, in whole or in part, and will advise Purchaser of the reason for its action. If the dispute is not resolved to Purchaser’s satisfaction, the Parties may further address the dispute pursuant to Article 13.
3.6 Bill Dispute Consequences. If a disputed amount withheld by Purchaser is determined to have been a legitimate charge, interest at the Default Rate of Interest may be charged, at Syringa’s discretion, on the amount not paid within the original Payment Period, and Purchaser must pay the total amount due and owing within five (5) business days of its receipt of notice of the determination from Syringa Networks.
ARTICLE 4 - TAXES AND GOVERNMENTAL CHARGES
4.1 Applicability. Unless otherwise expressly set forth on Exhibit A, the monthly recurring fees do not include any Government Charges and/or Taxes that may be imposed by any Governmental Activity in relation to the Service. Purchaser is responsible for payment of any Government Charges and/or Taxes except those based on Syringa Networks’ net income, personal and real property, and assets.
4.2 Payment and Other Obligations. Purchaser must pay existing and future Taxes and Governmental Charges and comply with new or revised terms and conditions imposed by Syringa Networks as a result of Governmental Activity. Syringa Networks will provide thirty (30) days’ notice to Purchaser of any new or revised terms and conditions resulting from Governmental Activity and such new or revised terms shall be effective immediately. If Syringa Networks decides to impose new or revised terms and conditions neither mandated by nor consistent with a Governmental Activity, Syringa Networks will furnish Purchaser with at least thirty (30) days notice of the new or revised charge or terms and conditions, and Purchaser may discontinue the affected Service, without any termination or other payment obligation (except for any charges owed for Service up to the time of termination), by furnishing Syringa Networks written notice of its intent to discontinue the Service no later than thirty (30) days after receipt of Syringa Networks’ notice of the new or revised charges, terms or conditions.
4.3 Exemption Certificate. If Purchaser believes itself to be exempt from any Taxes or Governmental Charges, it may provide Syringa Networks with a certificate demonstrating its eligibility for exemption. If the certificate is accepted, Syringa Networks will cease imposing the applicable Taxes or Governmental Charges and, if such charges previously had been imposed and collected, Syringa Networks will credit Purchaser in an amount equal to the charges paid by Purchaser during the ninety (90) day period immediately preceding the delivery of the accepted certificate, unless otherwise required by law or regulation.
4.4 Survival. Purchaser’s obligation to pay Taxes and Governmental Charges under this Article 4 will survive the expiration or early termination of this Agreement.
ARTICLE 5 - TERM AND TERMINATION
5.1 Term. The initial term of this Agreement will commence on its Effective Date and end five (5) years thereafter. The term automatically will renew on a month-to-month basis unless one Party provides the other with written notice of its intent not to renew it at least sixty (60) days prior to the end of the initial term or at least thirty (30) days prior to the end of any renewal term. If a term of Service established in a Service Order extends beyond the date of expiration of this Agreement, the affected Service will be provided in accordance with the term established in the Service Order pursuant to the Terms set forth in this Agreement as though they had remained in full force and effect.
5.2 Termination and Discontinuation of Service.
(a) Procedure. If Purchaser terminates this Agreement (other than as provided in Section 5.1) or discontinues a Service for any reason, Purchaser must provide Syringa Networks with written notice in accordance with Article 15. Termination of this Agreement or any Service requires thirty (30) days prior written notice. For discontinuation of Service, the notice must identify the affected Service(s) (e.g., the Circuit ID and its Primary and Secondary locations) and provide the requested termination date for discontinuation, which may not be less than thirty (30) days from the date Purchaser’s notice is received by Syringa Networks. A purported termination or discontinuation employing any other form of communication, or which fails to include essential information, will be ineffective, and Purchaser will remain fully obligated to Syringa Networks.
(b) Early Termination or Discontinuation. Unless otherwise agreed by the Parties in writing, if Purchaser terminates any Service ordered under this Agreement prior to the expiration of the Service Term set forth in any Service Order or Exhibit A, or for any early termination of Service due to an event of default by Purchaser for which Syringa has a right of termination of any Service prior to the expiration of the Service Term, Purchaser will be liable to Syringa for the Early Termination Liability as follows:
(i) All unpaid amounts for Service provided through the date of termination, including all monthly recurring charges and non-recurring charges, interest, late fees and charges, and attorney's fees and costs of collection; and
(ii) One hundred percent (100%) of the remaining monthly recurring charges that would have been incurred for the On-Net Service for all remaining months of the Service Term, plus interest, late fees and charges, and attorney's fees and costs of collection, if applicable.
ARTICLE 6 – RESERVED
ARTICLE 7 – WARRANTIES
7.1 The Parties. Each Party represents and warrants it is, and will remain, duly organized, validly existing, and in good standing under the laws of the place of its origin, and possesses all the authority necessary to enter into and perform its obligations under this Agreement.
7.2 Syringa Networks. Syringa Networks represents and warrants that: (a) its On-Net Service is designed, installed, provided, and maintained in compliance with applicable legal requirements; and (b) it possesses, and will maintain, all licenses, approvals, registrations and certifications required by regulators or other third parties to furnish its Services to Purchaser.
7.3 Purchaser. Purchaser represents and warrants that: (a) all Purchaser traffic handled by Syringa Networks is compliant with applicable legal requirements and those established in these Terms; and (b) it possesses, and will maintain, all licenses, approvals, registrations and certifications required by regulators or other third parties to furnish its services.
7.4 Exclusion of Other Warranties. THE WARRANTIES SET FORTH IN SECTIONS 7.1 THROUGH 7.3 ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, NON-INTERFERENCE, AND NON-INFRINGEMENT.
ARTICLE 8 - DEFAULT AND REMEDIES
8.1 Default Events. A Party is in default under this Agreement if any of the following occurs (each an “Event of Default”):
(a) a Party becomes insolvent, liquidates, is adjudicated as bankrupt, makes an assignment for the benefit of creditors, invokes any provision of law for the relief of debtors or initiates any proceeding seeking protection from its creditors; or
(b) a Party violates any legal requirement relating to the provision or receipt of Service, and the violation is not remedied within thirty (30) days of receipt of written notice of the violation;
(c) except as may otherwise be provided in an Exhibit, a Party fails to perform a material obligation under this Agreement (other than the payment of money), and the failure is not remedied within thirty (30) days of receipt of written notice of the failure. Any failure of Service resulting in Service Outage credits is not a default entitling Purchaser to terminate the affected Service or this Agreement; or
(d) Purchaser fails to pay any amounts due hereunder, and the failure is not remedied within ten (10) days of written notice of the failure; provided, however, Syringa Networks shall not be required to provide such notice more than two times in any twelve month period and such failure to pay when due thereafter shall be deemed an Event of Default without notice.
8.2 Default Remedies. Upon any Event of Default hereunder, the non-defaulting Party shall have the following remedies, to be exercised at its option, in addition to other remedies at law or in equity:
(a) Termination for Non Monetary Breach. In addition to remedies available at law or in equity, the non-defaulting Party may terminate this Agreement (including its Exhibits and Service Orders, both implemented and pending), in whole or in part, for any Event of Default other than the failure to pay any sums due hereunder.
(b) Remedies for Failure to Pay. Upon any Event of Default arising from the failure to pay any sums due hereunder, Syringa Networks may, at its option, do one or more of the following: (a) refuse to accept additional Service Orders; (b) without further notice, suspend and/or disconnect Service furnished under this Agreement or any Service Order until Purchaser has paid all past due amounts owed, with interest and late charges as set forth in these Terms; (c) offset unpaid balances with amounts Syringa Networks may owe Purchaser under any other agreement between the Parties; or (d) terminate any and all Services furnished under this Agreement or any Service Order. Following any suspension or disconnection of Service for non-payment, Service will not be restored until Purchaser pays in full all charges then due, including any late fees, interest, collection costs, and the costs incurred by Syringa Networks in restoring Service. If Purchaser fails to make full payment of the charges due within thirty (30) days of such suspension or disconnection, Service will be terminated effective as of the date of suspension.
(c) Early Termination Liability. A payment default or other default by Purchaser resulting in termination of this Agreement or any Service ordered pursuant to this Agreement will entitle Syringa Networks to collect from Purchaser applicable Early Termination Liability as set forth in Section 5.2.
ARTICLE 9 - CONFIDENTIAL INFORMATION
9.1 Confidential Information. Each Party must protect the other’s confidential information with the same degree of care used to protect its own confidential information, but in no event may less than a reasonable standard of care be used by either Party in connection with the preservation of the other Party’s confidential information. Confidential information shall be used by the recipient only for the purposes of performance under these Terms, any Service Order, and the Schedules comprising this Agreement.
9.2 Non-Disclosure. 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. The Parties shall, however, be permitted to disclose relevant aspects of the other’s confidential information to their officers, directors, employees, auditors, attorneys and representatives, to the extent that such disclosure is not restricted under these Terms, any Service Order, or the Schedules comprising this Agreement and only to the extent that such disclosure is reasonably necessary for the performance of its duties and obligations under these Terms and the Schedules; provided, however, that the recipient shall be responsible for ensuring that such officers, directors, employees, auditors, attorneys and representatives abide by the provisions of this Article 9.
9.3 Permitted Disclosures. Notwithstanding the foregoing:
(a) To the extent it is required to disclose such information in the context of any administrative or judicial proceeding, recipient may do so to the minimal 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 9.3(b) below; and
(b) Recipient shall have no obligation under these Terms with respect to any confidential information disclosed to it that (i) recipient 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 recipient’s breach of its obligations under these Terms; (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 recipient without use of or reliance on any confidential information furnished to it under these Terms.
ARTICLE 10- INDEMNIFICATION
10.1 Syringa Networks’ Indemnification of Purchaser. Syringa Networks will defend and indemnify Purchaser, its employees, directors, officers, and agents, from and against any suit, proceeding, or other claim brought by any person or entity (not a party to or an Affiliate of a party to this Agreement) that is caused by, arises from, or relates to: (a) damage to real or tangible personal property or personal injuries (including death) arising out of the gross negligence or willful act or omission of Syringa Networks in the provision of Service; or (b) Syringa Networks’ violation of any of its representations and warranties under this Agreement.
10.2 Purchaser’s Indemnification of Syringa Networks. Purchaser will defend and indemnify Syringa Networks, its employees, directors, officers and agents, from and against any suit, proceeding, or other claim brought by any person or entity (not a party to or an Affiliate of a party to this Agreement) 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 Purchaser in the use of the Service; (b) representations regarding the nature of Purchaser’s traffic; (c) any use or resale of Service by Purchaser or others; or (d) Purchaser’s violation of any of its representations and warranties under this Agreement.
10.3 Intellectual Property. If Service, by itself as provided by Syringa Networks, becomes, or if Syringa Networks reasonably believes it may become, the subject of a suit, proceeding or other claim by any person or entity (not a party to or an Affiliate of a party to this Agreement) that the Service directly infringes U.S. patent, trademark or copyright rights of such person or entity, Syringa Networks at its own expense and option will: (a) procure the right to continue to provide Service; (b) modify or replace Service with a different one having substantially similar functionality; or (c) discontinue the Service and, as appropriate, refund to Purchaser a pro-rata portion of charges paid by Purchaser through the date of Service discontinuance.
10.4 Procedure. If a claim is made against Syringa Networks or Purchaser, the Party in receipt of the claim (“Indemnified Party”) will notify the other Party (“Indemnifying Party”) in writing no later than sixty (60) days after learning of a potential claim. The Indemnifying Party will be entitled to assume sole control of the defense of the claim and all related settlement negotiations. The Indemnified Party will provide assistance, information and authority reasonably necessary to assist the Indemnifying Party. A Party may not settle a claim without the other’s consent if the settlement would impose an obligation on, or require any admission by, the other Party. Failure of the Indemnified Party to provide notification of a claim will not relieve the Indemnifying Party of its obligations under this Agreement except to the extent the delay prejudices the Indemnifying Party.
10.5 Limitation. Sections 10.1 and 10.3 set forth the entire liability of Syringa Networks, and Purchaser’s sole and exclusive remedies, with respect to any claim subject to indemnification under this Agreement.
10.6 Survival. These indemnification obligations will survive termination of this Agreement.
ARTICLE 11- LIMITATION OF LIABILITY
11.1 Consequential Damages. Neither Party is liable to the other for any indirect, consequential, special, incidental, reliance, or punitive damages of any kind or nature whatsoever including, without limitation, any lost profits, lost revenues, lost savings or any other business loss including goodwill, loss of use of property, loss of data, cost of substitute performance equipment or services, downtime costs, and claims for damages or harm to business regardless of foreseeability or whether damages are caused by the negligence, willful misconduct, or wrongful act arising from or related to these Terms. A Party’s out-of-pocket costs for damages of the kinds specified in the preceding sentence that are recovered by a third party are indirect damages to such Party, and each Party releases the other Party and its Affiliates, as well as their respective officers, directors, managers, employees, and agents, from damages from such claim(s), except to the extent they constitute claims for which indemnification is due under Sections 10.1 and 10.2.
11.2 Service Credits and Liability Limits. Purchaser’s sole remedy for any failure of Service is the right to receive Service Outage credits due under this Agreement as set forth in Exhibit B, attached hereto and incorporated herein by this reference. SYRINGA NETWORKS’ ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT (OTHER THAN FOR SERVICE FAILURES FOR WHICH SERVICE OUTAGE CREDITS WILL BE GIVEN AS SET FORTH ABOVE), IS LIMITED TO THE LESSER OF THE DIRECT DAMAGES ALLEGED AND PROVED BY CUSTOMER OR THE TOTAL AMOUNT PAID BY CUSTOMER FOR SERVICE DURING THE THREE (3) MONTHLY BILLING PERIODS IMMEDIATELY PRECEDING A CLAIM. The foregoing limitations apply to all causes of action and claims irrespective of their nature, including breach of contract, breach of warranty, strict liability, negligence, misrepresentation, or any other tort.
ARTICLE 12 - FORCE MAJEURE
With the exception of payment of fees and charges due under this Agreement and except as otherwise expressly provided in this Agreement, neither Party shall be liable to the other Party under this Agreement for any delay or failure of performance resulting from any cause beyond such Party’s reasonable control and without its fault or negligence, including without limitation, unusually severe weather conditions; earthquakes; floods; nuclear accidents; acts of God; epidemics; war, terrorist acts, riots, insurrections and civil disturbances; government regulations; acts of civil or military authorities or the public enemy; and fuel or energy shortages (collectively “Force Majeure”). The Parties agree that no labor dispute concerning the personnel and subcontractors of either Party will be considered a Force Majeure event.
ARTICLE 13 - DISPUTE RESOLUTION
The undersigned Parties acknowledge and understand that they are transacting business in the state of Idaho and that this Agreement was negotiated, accepted and shall be performed in Idaho.
13.1 Applicable Law and Venue. This Agreement will be governed by the laws of the State of Idaho without regard to choice of law principles. The Parties agree any action arising out of or relating to this Agreement not otherwise resolved through subsection 13.3 of this Article, may be brought in state courts located in Ada County, Idaho, or in the United States District Court for the District of Idaho, and each Party hereby irrevocably and unconditionally submits to such jurisdiction and venue. The Parties agree and acknowledge that the transaction contemplated herein is initiated in Idaho, this Agreement was formed in Idaho, and performance of this Agreement shall be in Idaho. Each Party agrees to personal jurisdiction in Ada County and waives any objection to jurisdiction or venue there.
13.2 Litigation Election. Either Party may elect to litigate the following type of case or controversy: (a) an action seeking equitable relief; (b) a suit to compel compliance with this dispute resolution process; or (c) non-compliance with a Party’s publicity obligations. Syringa Networks may elect to litigate billing or payment disputes or collections matters.
13.3 Mediation. The Parties may elect to engage in non-binding mediation as a first alternative to litigation. Such an election must be mutual and reflected in a writing signed by both Parties. Each Party will bear its own costs in mediation and all third party mediation costs will be shared equally between the Parties, unless otherwise agreed.
ARTICLE 14 - ASSIGNMENT
14.1 Assignability. Upon at least thirty (30) days written notice, either Party may assign this Agreement to an Affiliate without the prior written consent of the other Party. In connection with any assignment by Purchaser to an Affiliate, or a merger, reorganization or sale of all or substantially all Purchaser assets to a third party, the assignee must: (a) assume, in writing, all responsibilities and obligations under this Agreement; (b) be at least as creditworthy as Purchaser (as determined by Syringa Networks in its reasonable discretion) as of the Effective Date of this Agreement; and (c) deliver to Syringa Networks executed documents that are acceptable to Syringa Networks and establish the terms of the Assignment.
14.2 Prior Agreement. If this Agreement is assigned to an entity that, prior to the assignment, had an agreement with Syringa Networks, the service being provided will continue to be governed by that prior agreement, and the Service provided under this Agreement will be governed by these Terms, each without reference to the other.
ARTICLE 15 - NOTICES
15.1 Bill Disputes. Purchaser must submit a dispute of any invoiced charge(s) electronically to firstname.lastname@example.org or such other address as Syringa Networks may specify from time to time.
15.2 Service Discontinuation. Purchaser must submit a request to discontinue a Service to email@example.com or such other address as Syringa Networks may specify from time to time. A request to discontinue Service will be effective no sooner than thirty (30) days after receipt thereof.
15.3 Other Matters. All other notices under this Agreement, including any notice pertaining to termination of this Agreement, must be in writing and delivered by overnight courier (e.g., Federal Express, DHL) or certified mail, return receipt requested, or via electronic mail to the persons whose names and business addresses appear below. A notice will take effect on the date of its receipt by the receiving Party:
If to Syringa Networks:
Syringa Networks, LLC.
12301 W. Explorer Drive
Boise, Idaho 83713
Attn: Greg Lowe, CEO
With copy to:
Cynthia A. Melillo.
Cynthia A. Melillo PLLC
8385 W. Emerald Street
Boise, Idaho 83704
If to Purchaser: To the address on file at the time Purchaser submits a Service Order
Syringa Networks may change its address and point(s)-of-contact by notifying Purchaser by bill message insert, email or in accordance with the requirements established in this Article.
ARTICLE 16 - MISCELLANEOUS
16.1 Interpretation. This Agreement may not be construed or interpreted against either Purchaser or Syringa Networks because that Party drafted, or caused its legal representative to draft, any of its provisions.
16.2 Order of Precedence. If there is an express inconsistency between a Term set forth herein, by itself, and a term in any Exhibit, or other contract document (including any Non-disclosure Agreement), the order of precedence, from the most to the least controlling, is the term contained in:
(a) the Exhibit or other contract document (including any Non-disclosure Agreement); then
(b) these Terms.
16.3 Syringa Networks Facilities, Equipment and Software. Syringa Networks facilities, including equipment and software, used to provide any Service will remain the exclusive property of Syringa Networks or its assignee, and nothing contained in these Terms can be interpreted to convey to Purchaser any right, title or interest in the facilities, equipment or software, which will remain personal property even if attached to or embedded in realty. Purchaser may not remove or conceal any identifying plates, tags, or labels affixed to Syringa Networks facilities or equipment, nor may Purchaser alter, or attempt to alter, software furnished as part of Service. Syringa Networks may substitute or rearrange the facilities or equipment, or modify the software, so long as the quality of Service is not impaired by the changes. Upon termination of Service for any reason, Syringa Networks will retrieve its facilities and equipment from Purchaser Premises or Purchaser, at its expense, will return to Syringa Networks, within thirty (30) days of Service termination, all Syringa Networks-provided facilities and equipment, along with any software and other information or materials provided by Syringa Networks in connection with the furnishing of Service. The facilities, equipment, software or other materials retrieved or returned will be in the same condition as when initially delivered to Purchaser, normal wear and tear excepted. If Purchaser fails to return Syringa Networks’ property or allow for its retrieval, Purchaser must reimburse Syringa Networks, upon demand, for the replacement cost of the facilities, equipment, software, and other information or materials provided, as well as any costs incurred by Syringa Networks resulting from the Purchaser’s failure to return Syringa Networks’ property.
16.4 Agency; Partnership; and Third Parties. Neither Party becomes the agent or legal representative of the other Party as a result of this Agreement, nor does it create a partnership or joint venture between the Parties. In addition, this Agreement confers no rights, benefits, or remedies of any kind on third parties.
16.5 Waiver. No waiver of any provision in this Agreement will be binding unless in writing and signed by both Parties. The failure of a Party to insist on the strict enforcement of any provision of this Agreement will not constitute a waiver of the provision and all terms of this Agreement will remain in full force and effect.
16.6 Subsequent Agreement; Signatures; and Communication Methods.
(a) Subsequent Agreement. No subsequent agreement between the Parties concerning Service will take effect or be binding unless made in writing and signed by both Parties.
(b) Signatures. Any requirement for a signature in any document relating to this Agreement (other than these Terms) may be satisfied by a facsimile transmission of an original signature or by delivery of electronic mail in PDF or similar scanned format, or by an electronic symbol or process (“e-signature”) attached to or logically associated with this Agreement, including any component hereof, and executed or adopted by a person having the intent to sign the document. Any person completing, submitting or executing any such document on behalf of Purchaser by way of the Internet or other electronic or online means represents that he/she possesses the authority to act on Purchaser’s behalf and any such documents so delivered to, and accepted by, Syringa Networks will be binding on Purchaser.
(c) Communication Methods. Neither electronic mail nor instant messaging (IM) will be a “writing” sufficient to modify the terms of these Terms, although those methods of communication may be used otherwise in the performance of the Parties’ obligations under this Agreement.
16.7 Entire Agreement. This Agreement sets forth the entire understanding of the Parties and supersedes prior or contemporaneous agreements, arrangements, or understandings, both written and oral, with regard to Service. The Addenda, Exhibits and other documents to which reference has been made are integrated parts of these Terms.
16.8 Severability. If any provision of this Agreement is found to be invalid or unenforceable under applicable law, it will be ineffective only to the extent of its invalidity and will not affect the remaining provisions in this Agreement.
16.9 Non-Exclusivity. This Agreement is non-exclusive. Either Party may enter into similar arrangements with others.
16.10 Publicity. Neither Party may issue a news release, public announcement, advertisement or other form of publicity relating to these Terms or Service without the prior written approval of the other Party.
16.11 Survival. The terms of this Agreement which, by their usage and context, are intended to survive this Agreement including, without limitation, the obligation to make payments for Service, will survive its expiration or termination.
16.12 Headings and Internal References.
(a) Headings. The Article and Section headings in this Agreement, including all its incorporated documents, are for convenience only and may not be considered in interpreting the provisions in which they appear.
(b) Internal References. Any plainly erroneous references or citations to Articles and Sections in this Agreement, including all its incorporated documents, will allow either Party to demonstrate to the reasonable satisfaction of the other Party the intended reference or citation based on logic, context and previous versions of contractual documents.
SERVICE LEVEL AGREEMENT
This Service Level Agreement applies to the Transport Service furnished to Purchaser and is incorporated into and made part of the Syringa Networks Standard Terms and Conditions to which this is attached (the “Terms”).
1. SERVICE PERFORMANCE CRITERIA
1.1 Definitions. For purposes of this Exhibit B, the following terms have the meanings set forth below:
(a) Protected Service. Service providing an ability to support failure recovery via redundant electronics in the network, diverse routing between two Syringa Networks’ POPs, or both.
(b) Unprotected Service. Service providing a single transport path between two locations, without redundant electronics or diverse routing capabilities.
1.2 Availability and Response.
(a) Service Availability per Monthly Billing Period. Availability is defined as the relative amount of time a Circuit is usable during a monthly billing period. A Circuit is considered unavailable when there is a complete loss of use. Syringa Networks' Service availability objectives are 99.999% for Protected Service and 99.99% for Unprotected Service.
(b) Response and Repair Times. Syringa Networks' Mean Time to Repair (“MTTR”) objective is a yearly average of four (4) hours per occurrence with no single occurrence lasting more than six (6) hours from the time a Trouble Ticket is opened.
1.3 Credit Allowances for Service Outages. If Service is unavailable (other than as a result of a planned Service Outage) Purchaser is entitled to receive a credit for the prorated monthly recurring charge of the affected Service. A credit allowance will reduce Purchaser’s payment obligation on a subsequent invoice. A Service Outage begins when Syringa is notified or becomes aware of Service unavailability, whichever first occurs, and ends when Service is restored. The total outage time of the Service Outage is the difference between its start and end times, less any delay time resulting from Syringa Networks' inability to access Purchaser or End User Premises. If Purchaser reports a Service Outage but declines to release the Service for testing and repair, the Service will be deemed to be impaired, but not a Service Outage eligible for a credit allowance.
1.4 No Credit Allowances. Credit allowances do not apply to Service Outages:
(a) involving Off-Net service;
(b) caused by Purchaser or its End User or their agents or contractors;
(c) resulting from a power failure at Purchaser or End User Premises;
(d) resulting from the failure or malfunction of non-Syringa-provided equipment or systems;
(e) due to causes beyond the reasonable control of Syringa Networks, its contractors or its agents;
(f) occurring during any period in which Syringa Networks is not given access to Purchaser or End-User Premises; or
(g) occurring during any planned Service Outage, unscheduled emergency maintenance, scheduled maintenance, or changes in Service requested by Purchaser.
1.5 Credit Eligibility Requirements. To be eligible to receive a credit allowance for a Service Outage, Purchaser must:
(a) report the Service Outage by causing Syringa Networks to open a Trouble Ticket;
(b) submit a written request for a credit allowance to Syringa Networks within one-hundred (100) days of the date of the Service Outage;
(c) be current on all payments due and owing to Syringa Networks; and
(d) provide such other information as reasonably required by Syringa Networks to investigate the claim. Unless otherwise expressly allowed, Service Outages are not aggregated for purposes of determining a credit allowance.
(a) Protected Service. The following credit allowances apply to Service Outages involving On-Net Protected Service:
Service Outage Length Credit Per Circuit
15 minutes or less None
15 to 60 minutes 10% of the MRC
61 to 119 minutes 25% of MRC
120 to 179 minutes 50% of MRC
180 to 239 minutes 75% of MRC
240 minutes or greater 100%
(b) Unprotected Service. The following credit allowances apply to Service Outages involving On-Net Unprotected Service:
Service Outage Length Credit Per Circuit
Up to 240 minutes None
240 to 480 minutes 25% of MRC
481 to 600 minutes 35% of MRC
601 to 720 minutes 50% of MRC
More than 720 minutes 100% of MRC
(c) Limitation on Credits. The total credit allowances for any Circuit may not exceed 100% of the MRC for such Circuit during a monthly billing period.
1.7 Chronic Trouble.
(a) Reporting. Whenever a Purchaser reports to Syringa Networks that a Service has Chronic Trouble, Syringa Networks will immediately investigate and report its findings to Purchaser.
(b) Protected Service. A Protected Service is considered to have Chronic Trouble if it experiences four (4) or more related Service Outages of more than two (2) hours each OR for twenty-four (24) or more aggregate hours in any calendar month, and such Outages do not result from any one or more of the occurrences set forth in Section 1.4(b) through (g), above. If a Service experiences Chronic Trouble, Purchaser may obtain credit allowances for the Service Outages as set forth in Section 1.6 above or discontinue the affected Service(s) without any further liability to Syringa Networks (except to pay for Service up to the date of termination) upon furnishing written notice to Syringa Networks as set forth in the Terms. In addition, if a Service continues to experience Chronic Trouble during a thirty (30) day period after clearing the most recent Chronic Trouble for the same Service, Purchaser may discontinue the affected Service without any further liability to Syringa (except to pay for Service up to the date of termination) upon furnishing written notice to Syringa.
(c) Unprotected Service. An Unprotected Service is considered to have Chronic Trouble if it experiences three (3) or more Service Outages of more than twelve (12) hours each or for more than forty-two (42) or more aggregate cumulative hours during any calendar month, and the Service Outages did not result from any one or more of the occurrences set forth in Section 1.4 above.
2. MAINTENANCE AND REPAIR
2.1 Performance. Service maintenance and repair will be performed by Syringa Networks, or its designated contractor, at no additional charge to Purchaser whenever a Service failure is caused by Syringa or its contractor. Additionally, Syringa Networks or its contractor will provide all maintenance spares at Syringa Networks’ sole cost and expense.
2.2 Timing. Syringa Networks will maintain and repair Service twenty-four (24) hours a day, seven (7) days a week. Scheduled maintenance will be performed during specified Purchaser maintenance windows. Purchaser must provide Syringa Networks with a maintenance window within seventy-two (72) hours of a request from Syringa Networks. In case of emergencies, Syringa Networks will furnish as much prior notice to Purchaser as is practicable. If Purchaser requests in advance, Purchaser may be present during Syringa Networks scheduled and non-scheduled maintenance and repair activities.
2.3 Denial of Access to Premises. If Syringa Networks or its contractor is unable to access Purchaser or End User Premises and such access is required for Syringa Networks to fulfill its performance obligations under this Agreement, Syringa Networks’ performance obligations will be deemed to be suspended until such time as Purchaser provides the necessary access to Syringa or its contractor.