Master Services Agreement
THIS MASTER SERVICES AGREEMENT (“Agreement”) is effective as of January 1, 2020 by and between Sterling Communications, Inc., an Oregon corporation (“Sterling”), and you (“Customer”) on its behalf and behalf of its affiliates and subsidiaries, which shall become subject to this Agreement upon execution of a Sterling Service Agreement with respect to each Location (collectively, the “Parties”).
Unless you have a separate Master Services Agreement with Sterling, this Master Services Agreement supplements any services agreement between Sterling and Customer and its affiliates (each a “Service Agreement”), with the intended purpose of providing the standard terms and conditions by which Sterling will provide services at each of Customer’s locations (each a “Location”) where Customer requests and Sterling accepts the offering of services.
Sterling possesses certain technical expertise in the field of hosted desktop, hosted VoIP, high-speed internet solutions, colocation, private cloud hosting, HIPAA compliant hosting and products, web hosting, security protection and internet traffic monitoring, internet fax, and cloud-based internet solutions, and other offerings as further described in the Service Agreement for each Location (the “Services”). Customer has engaged Sterling to provide the Services according to the terms and conditions set forth in each of the Service Agreements, each of which are incorporated herein where executed prior to the date hereof and shall supplement and amend this agreement when executed after the date hereof.
This Agreement consists of the General Terms and Conditions, the Service Level Agreement, any exhibits or schedules agreed to by both parties, and the Service Agreements for each Location signed by the parties. The service payment amounts, equipment payment amounts, and services to be delivered at each Location will be as provided by the Service Agreement signed for each Location.
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
1.1. Unless otherwise specified, capitalized terms used in this Agreement will have the meanings attributed to them in this Section 1 or in the exhibits and schedules attached in which such term appears.
“Hardware” means any hardware provided to Customer under any Services, exhibits, or any schedule attached to this Agreement.
“Services” means the services to be provided to the Customer under this Agreement, exhibit or schedule attached to this Agreement.
2. SERVICES
2.1. Sterling agrees to provide the Services for the benefit of Customer.
2.2. Sterling purchases many of the components of its Services from third parties. Customer acknowledges that Sterling uses third parties to provide many of the components of its Services. As a result, Sterling cannot be liable to Customer for any interruption or degradation of Services or service outage caused directly or indirectly by any of these third party providers and Customer acknowledges and agrees that the Services may be temporarily limited, interrupted or curtailed due to system capacity limitations imposed or experienced by third party providers, governmental actions, force majeure, or because of temporary equipment or systems failures or modifications, upgrades, maintenance, repairs or similar activities required or appropriate in connection with the delivery or improvement of the Services. Advance notice of an interruption shall be provided whenever possible.
2.3. Customer’s use of the Services is solely at its own risk and subject to all applicable local, state, national and international laws and regulations.
2.4. Customer shall not itself, or through any parent, subsidiary, agent or any third party (a) sell, lease, license or sub-license the Services or documentation; or (b) provide, disclose, divulge or make available to, or permit use of the Services or documentation by any third party.
2.5. This Agreement transfers to the Customer neither title nor any proprietary or intellectual property rights to the Services, documentation, or any copyrights, patents, or trademarks, embodied or used in connection therewith, except for the rights expressly granted herein.
2.6. Rates for Services are based on a “quantity of users” basis and can fluctuate monthly as qualities and users changes. The minimum level of service for each Location is established at 80% of the maximum number of users configured by Sterling during the term of this Agreement.
3. TERM
3.1. The initial term of this Agreement with respect to the Services at each Location shall be for the period indicated on each the Service Agreement for each Location. If notification of termination is not received thirty (30) days prior to the end of the term, the term shall automatically be renewed and extended for one additional year. Customer may terminate Services at any Location by providing 90 days’ notice. Upon termination prior to the end of the service term, Customer is responsible for payment of the remaining fees and payments through the remainder of the service term.
3.2. The date that Services are first provided to a Customer’s location shall be known as the “Activation Date” and shall be the date that Sterling notifies Customer that the installation is complete and when correct operation of the service has been demonstrated.
4. FEES
4.1. Customer shall pay Sterling the fees and charges as set forth on in the Services Agreement for each Location and as billed by Sterling, monthly in advance. Sterling reserves the right to apply a late fee of 1.5% of the amount due ($5.00 minimum) for any invoice remaining unpaid past the due date on the invoice. Payment terms are “net 10 days”. Customer shall pay a $50.00 fee for Non-sufficient funds (NSF) or rejected checks.
4.2. If payment is not received within fifteen (15) days of when due, Sterling shall have the right to terminate Services upon 24 hours’ notice to Customer.
4.3. For the Customer’s convenience, the Customer may elect to pay by via wire transfer in immediately available U.S. funds, so that the payment is timely received by Sterling. Wire Transfer Instructions will be provided by Sterling, provided that Customer shall be liable for the payment of all incoming wire fees assessed by Sterling’s bank or depository institution. For proper crediting to account, the invoice number(s) for each payment is being wired must be provided with wire transfer instructions.
4.4. Customer is liable for all charges for the Services, including without limitation, any “fraudulent usage charges”, defined as non-customary usage of the Service which is outside its normal and contemplated use.
5. STERLING PROPERTY
5.1. Customer acknowledges that the Services constitute proprietary information and trade secrets of Sterling, whether or not any portion thereof is or may be the subject of a valid copyright or patent. Customer agrees to take all appropriate steps to ensure that persons having access to the Services shall refrain from any unauthorized reproduction or disclosure of the documentation or any portion thereof. All work performed by Sterling and any supporting materials and documentation therefore shall be considered as owned by and for the benefit of Sterling except as licensed or provided to Customer under this Agreement.
5.2. Customer may use the Services only at Customer’s Locations mutually agreed to by Sterling.
6. CONFIDENTIAL INFORMATION; NON-SOLICITATION
6.1. The Parties acknowledge that by reason of their relationship under this Agreement, they may have access to and acquire “Confidential Information” of the other Party. “Confidential Information” means material, data, systems, and other information concerning the operation, business, projections, market goals, financial affairs, products, services, customers and Intellectual Property Rights of the other Party that may not be accessible or known to the general public. Confidential Information shall include, but not be limited to, the terms of this Agreement, and any information which concerns technical details of operation of any of Sterling’s Services, or Hardware offered or provided hereunder.
6.2. Each Party receiving Confidential Information (the “Receiving Party”) agrees to maintain all such Confidential Information received from the other Party (the “Disclosing Party”), both orally and in writing, in confidence and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the terms of this Agreement to its legal and accounting advisors if such third parties agree to maintain the confidentiality of such Confidential Information under terms no less restrictive than those set forth herein. The Receiving Party further agrees to use the Confidential Information only for the purpose of performing this Agreement. Notwithstanding the foregoing, the obligations set forth herein shall not apply to Confidential Information which: (a) is or becomes a matter of public knowledge through no fault of or action by the Receiving Party; (b) was lawfully in the Receiving Party’s possession prior to disclosure by the Disclosing Party; (c) subsequent to disclosure, is rightfully obtained by the Receiving Party from a third party who is lawfully in possession of such Confidential Information without restriction; (d) is independently developed by the Receiving Party without resort to the Confidential Information; or (e) is required by law or judicial order, provided that the Receiving Party shall give the Disclosing Party prompt written notice of such required disclosure in order to afford the Disclosing Party an opportunity to seek a protective order or other legal remedy to prevent the disclosure, and shall reasonable cooperate with the Disclosing Party’s efforts to secure such a protective order or other legal remedy to prevent the disclosure. In addition, Sterling’s treatment of any Customer Information collect through the Customer website will be in accordance with Sterling’s Privacy Statement on such website.
6.3. Customer acknowledges that it has had and will continue to have access to Confidential Information of Sterling and that such information is valuable to Sterling. Therefore, Customer covenants and agrees that it will not at any time during the term of this Agreement or for a period of twelve (12) months thereafter, directly or indirectly:
a) Hire, attempt to hire, contact or solicit with respect to hiring for Customer or on behalf of any other person or entity, any present or past employee or contractor of Sterling;
b) Engage in, or give information about the Services or its use by Customer or Sterling’s provisioning thereof to any person, firm, partnership, association, venture, corporation or other entity engaged in a business substantially similar to Sterling’s business.
7. REPRESENTATIONS AND WARRANTIES OF CUSTOMER
7.1. Customer hereby represents, warrants and covenants that with respect to this Agreement and each Exhibit attached hereto that, the Customer: (a) organization validly existing under the laws of the jurisdiction of its incorporation and has all power and authority to operate in each jurisdiction of the Locations, (b) is duly qualified to conduct its business in each of the locations at which it receives the Services; (c) is duly authorized to execute and deliver this Agreement and represents and warrants that the person executing this Agreement is so authorized; (d) has signed this Agreement; (e) is accepting the Services offered by Sterling; and (f) has had the opportunity to review this Agreement with the advice of legal counsel.
8. CLAIMS LIMITATIONS
8.1. No action arising out of any breach or alleged breach of this Agreement or transactions contemplated by the Agreement may be brought by either party more than one (1) year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have accrued when a party know or reasonably should have known of the breach or alleged breach. THE PARTIES EXPRESSLY WAIVE THE STATUTE OF LIMITATIONS OTHERWISE APPLICABLE HERETO.
8.2. IN NO EVENT SHALL STERLING BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, INTERRUPTION OF SERVICE, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SERVICES PROVIDED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF STERLING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, STERLING WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR FURNISHING THE SERVICES. STERLING’S LIABILITY UNDER THIS AGREEMENT FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, RESTITUTION, WILL NOT, IN ANY EVENT, EXCEED THE CHARGES FOR THE SERVICES PAID BY CUSTOMER TO STERLING IN THE PRIOR YEAR UNDER THIS AGREEMENT WITH RESPECT TO THE LOCATION IN QUESTION.
9. DOCUMENTATION
9.1. Sterling will provide to the Customer reasonably required documentation upon installation necessary for Customer’s operation and use of the Services.
10. TAXES AND GOVERNMENT FEES
10.1. Customer acknowledges that Sterling’s fees for Services do not include federal, state, and local sales, use, gross receipt and other taxes of any nature (other than Sterling’s income taxes), federal, state and local surcharges, assessments and fees of any nature and federal, state and local regulatory surcharges, fees and assessments of any nature, whether charged against Sterling or Customer because of any Services provided to Customer (collectively referred to as “Telecom Taxes”), and Customer shall be liable to pay all such Telecom Taxes immediately upon demand and that such Telecom Taxes may be invoiced to Customer. Customer shall be billed by and shall pay Sterling for all such Telecom Taxes in addition to all other charges provided herein. Customer shall pay as and when due, and indemnify and hold Sterling harmless from and against, all present and future Telecom Taxes and other governmental charges and amounts in lieu of such taxes and charges and any penalties and interest on any of the foregoing, imposed, levied or based upon, in connection with or as a result of the leasing, possession or use of the Services.
11. ASSIGNABILITY
11.1. Customer shall not assign any right or delegate any obligation hereunder without Sterling’s prior written consent, and any purported assignment or delegation by a party hereto without the other party’s written consent shall be void. Such assignment shall include, directly or indirectly, any assignment, sublicense, merger, acquisition, asset sale, conveyance, lease or otherwise, or change in control of Customer.
11.2. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their successors.
12. EVENTS OF DEFAULT
12.1. An Event of Default shall occur hereunder if Customer:
a) fails to pay any service fee or other payment required hereunder for the Services provided by Sterling when due;
b) materially breaches any representation or warranty made or given by Customer in this Agreement or in any other document furnished to Sterling in connection herewith;
c) breaches, fails to perform or otherwise observe any other covenant, condition or agreement to be performed or observed by it hereunder, and such failure or breach shall continue unremedied for a period of ten days after notice of such breach;
d) shall become insolvent or bankrupt or make an assignment for the benefit of creditors or consent to the appointment of a trustee or receiver, or a trustee or receiver shall be appointed for a substantial part of its property without its consent, or bankruptcy or reorganization or insolvency proceeding shall be instituted by or against Customer;
e) ceases doing business as a going concern;
f) terminates its legal existence, consolidated with, merged into, or conveyed or leased substantially all of its assets to any person, without the consent of Sterling to continue offering the Services; or
g) assigns this Agreement, without the prior written consent of Sterling.
13. REMEDIES UPON DEFAULT
13.1. In the event of any default by Customer, Sterling may, at its option, do one or more of the following:
a) terminate or modify the Services, or terminate this Agreement, in whole or in part; and
b) declare as immediately due and payable and recover from Customer, as damages and not as a penalty, an amount equal to the remaining balance due for Services provided at each location for which this Agreement has been terminated through the end of the applicable term.
13.2. Exercise of Sterling’s rights under any of these remedies does not and shall not preclude Sterling from exercising its rights under anyone or more of its rights granted to Sterling hereunder.
13.3. Sterling shall have the right to terminate this Agreement if the Customer fails to pay for Services. If Sterling terminates this Agreement, Sterling shall be immediately entitled to receive the amounts that are due from Customer for the remainder of the term of this Agreement.
14. DISPUTE RESOLUTION
14.1. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiations among each Party’s representatives. Either Party may give the other Party written notice of any dispute not resolved in the normal course of business. Within fifteen (15) days after such notice is given, Parties will meet in order to resolve in good faith the dispute. If a resolution cannot be achieved, then either Party may initiate an arbitration proceeding to have the dispute resolved. This Agreement, and any dispute arising hereunder, shall be governed by the laws of the state of Oregon without regard to conflict of laws principles, and venue shall be Washington County, Oregon. THE PARTIES AGREE TO PRIVATE, BINDING ARBITRATION GOVERNED BY THE RULES OF THE ARBITRATION SERVICE OF PORTLAND, INC. OR ITS SUCCESSOR, and the parties shall share equally in the costs of the arbitrator. The arbitration shall take place in Washington County, Oregon or any other jurisdiction mutually agreed to by the parties. The arbitrator shall have authority to award attorneys’ fees to the prevailing party, and any arbitration judgement may be judicially enforced. Either party shall be entitled immediate injunctive relief in any court of competent jurisdiction, and shall further be entitled to recover its reasonable costs and attorneys’ fees incurred in seeking relief for any such breach or threatened breach of this Agreement.
15. WARRANTIES, DISCLAIMER AND LIMITATION OF REMEDIES
15.1. Sterling represents and warrants that it has the authority to enter into this Agreement and to fully perform its obligations under this Agreement.
15.2. EXCEPT AS SET FORTH IN THIS AGREEMENT, STERLING MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND DOCUMENTATION AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. STERLING DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIES, WITH RESPECT TO THE SERVICES.
15.3. IN NO EVENT SHALL STERLING BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING ANY CLAIMS FOR LOST PROFITS, BUSINESS INTERRUPTION, LOST INFORMATION OR OTHER DAMAGE ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES.
15.4. No warranty shall apply to any item of Service, (a) which has been modified in any respect without the express written consent of Sterling, (b) which has been installed, serviced or repaired by or on behalf of Customer by any person other than an authorized agent of Sterling, (c) which has been removed from Customer’s premises, (d) which has been subject to unusual physical or electrical stress, or (e) which has been damaged by reason of accident, neglect or misuse.
15.5. Force Majeure. Sterling shall not be deemed in default hereunder, nor shall Sterling be responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, denial of service attacks or other malicious attacks on the Sterling or Customer network, criminal acts, act of God, war, terrorism, armed conflict, labor strike, lockout, boycott or other similar events beyond the reasonable control of Sterling.
16. GENERAL PROVISIONS
16.1. Notices. All notices shall be in writing and addressed to the Party to be served at the respective addresses. Any such notice may be served personally or by email, certified mail (postage prepaid), internationally commercially recognized overnight delivery service, or courier. Notice shall be deemed served upon actual receipt by any means, personal delivery or delivery by courier, upon the second business day after the date sent for notices sent via overnight delivery, or upon the fifth business day after the date sent for notices sent via certified mail. Either Party may change the address to which notices are to be delivered by written notice (excluding email) to the other Party.
16.2. Entire Agreement. Each party acknowledges that this Agreement and the documents incorporated by reference herein constitutes the complete and exclusive statement of the terms and conditions between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties.
16.3. Amendments and Waiver. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by the Parties to be bound thereby, and this Agreement may not be modified or extended solely by submission of a purchase order or similar instrument referencing this Agreement.
16.4. Severability. In the event that any provision of this Agreement should be found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained shall not, in any way, be affected or impaired thereby.
16.5. Survival of Terms. All of the provisions of this Agreement relating to the payment obligations, confidentiality, non-disclosure, warranties, limitation on liability and indemnification shall survive the expiration or termination of this Agreement.
16.6. Third Party Beneficiaries. No provisions of this Agreement are intended nor shall be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party.
16.7. Independent Contractors. The Parties to this Agreement are independent. Neither Party is an agent, representative, joint venture, or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation of liability of, or to otherwise bind, the other Party. Each party shall bear its own costs and expenses in performing this Agreement.
16.8. Non-Waiver. Neither Sterling’s or Customer’s failure at any time to require strict performance by Customer or Sterling of any provision hereof shall not waive or diminish the right of either party to thereafter demand strict performance thereof or of any other provision. None of the provisions of this Agreement shall be held to have been waived by any act or knowledge of either Sterling or Customer, but only by a written instrument executed by Sterling or Customer and delivered to Customer or Sterling. Waiver of any default shall not be a waiver of any other subsequent default.
SERVICE LEVEL AGREEMENT
Since 1998, Sterling Communications has been designing, implementing, and supporting leading-edge solutions that help put technology to work for businesses. From VOIP phone systems to hosted desktop to advanced cloud services, this technology and innovation are at the core of what we do, allowing our clients to then focus on their passion in business. Our team of seasoned industry veterans works alongside each customer in crafting the right solution for their situation.
Our commitment to our Services includes the following service level agreement (“SLA”):
1. Uptime: 99.99% or greater uptime of the Services and network availability outside of planned maintenance windows for which Sterling will provide at least 24 hours’ advance email notification, and except for emergency outages.
2. Proactive Notification: 24x7x365 proactive monitoring and customer notification of significant service-affecting issues .
3. Support: 24x7x365 live human being phone support and 24-hour response email support. We endeavor to respond to all emails within one hour.
4. Maintenance: All routine maintenance, repair functions, emergency maintenance and emergency repair functions of the Services shall be performed by or under the direction of Sterling. Sterling shall use best efforts to provide Customer with advance notice via email for all routine maintenance and repair functions.
5. Response: Sterling shall use reasonable efforts to respond to any failure, interruption or impairment in the operation of the Service as soon as practicable after receiving notice of a failure, interruption or impairment which may.
6. Refunds: Outages exceeding four hours may entitle the Customer to a pro rata refund of downtime relative to that Location’s monthly fee, upon request from the Customer and to the extend not caused by Customer action or third-party outages beyond Sterling’s control.