MASTER SERVICE AGREEMENT

 

This Master Service Agreement (“Agreement”) is between MCC Network Services, LLC., an Illinois partnership d/b/a Metro Communications Company (“Metro”) and CUSTOMER NAME the terms contained herein.  Hereinafter, Metro and Customer may be referred to in the aggregate as “Parties,” and each singularly as a “Party.”

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WHEREAS, Metro has constructed a fiber optic communications network in East Central Illinois (“Metro Network” or “Network”); and

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WHEREAS, Customer desires to purchase services from Metro.

Accordingly, in consideration of the mutual promises set forth below, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

 

Attachment                            Title

        A                                      Escalation Procedures/Contact List

        B                                       Service Order Form

 

Article I:  Service Description

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1.1       “Service” Shall mean the following services provided by Metro under this Agreement, as more fully described in Attachment B of this Agreement.

 

1.2       “Delivery” Unless otherwise agreed to in writing by the parties, the Service provided to Customer will be as described in Attachment B.

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1.3       “Availability”  The availability of the Service may be dependent on distance from the nearest “Ethernet-capable” Metro facility.  Metro reserves the right to limit service availability in the event that the necessary components, including, but not limited to, electrical power, cooling capacity, cabling, rack space, switching/routing/network infrastructure, and application software, are either unavailable or unattainable at a reasonable cost to Metro.

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1.4       “Installation”  Service to the Customer Premise will be delivered to the location as identified within Attachment B.  Metro will provide and install the fiber, network interface device and all other equipment used or required to deliver the Service to the demarcation point.  Customer shall be responsible for all Equipment, wiring, cabling, interior conduit, router(s), switches or other devices on its side of the demarcation point.  It is Customer’s responsibility to ensure that all devices at the Customer Premise are able to connect to network interface device and are configured properly.  This includes, but is not limited to Ethernet switches, Ethernet cabling, workstations, servers and operating systems.

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1.5       “Parties’ Responsibilities” Customer is responsible for any equipment modifications necessary at the Customer Premise.  Metro is not responsible for and, except as explicitly provided herein or agreed to in writing by the parties, will not be obligated to provide any assistance in configuration, installation, administration, troubleshooting, maintenance, or repair of equipment or software, or integration of equipment or software into Customer’s internal network.  Such services may be available at additional cost.

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If additional configuration work is required due to limitations in the Customer’s systems, including but not limited to servers, workstations or network, then Metro reserves the right to bill Customer at current hourly rates for additional configuration time.  Metro reserves the right to bill Customer for any cabling required to support the Service. 

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1.6       “Service Order” shall mean the location and specifics of the Service as defined in the form provided in Attachment B to this Agreement.

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Article II:  Term and Termination

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2.1       Effective Date of Agreement.  This Agreement is binding on the Parties upon Effective Date.  The Effective date is defined as the date of the last signature to the Agreement, unless otherwise specified.

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2.2       Term of Agreement.  This agreement shall commence on the Effective Date and shall remain effective until the termination or expiration (whichever occurs first) of the last remaining Service Order (the “Term”). 

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2.3       Service Orders.  For delivery of services to customers at single or multiple locations, each location will require a Metro (“Service Order”) Form in the form provided in Attachment B to this Agreement to be executed and signed by both Metro and Customer before services can be turned up.  The term of service is governed by the Service Order and will commence upon Metro sending a “Connection Notice”, see Section 3.1.  Upon expiration of that term the Service Order will renew for an additional twelve (12) month term (“Renewal Term”).

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2.4       Renewal Terms.  Upon the expiration of the Initial Term or any Renewal Term, this Agreement shall automatically renew for an additional twelve (12) month term (“Renewal Term”), at current contracted rate, unless cancelled by either Party by providing written notice to the other Party within ninety (90) days of the expiration of the Initial Term or any Renewal Term.

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2.5       Termination Rights.

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(a)  Either Party may terminate this Agreement upon the other Party's insolvency, dissolution or cessation of business operations. 

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(b)  Metro may terminate this Agreement for Customer’s failure to pay amounts owed pursuant to this Agreement, or to maintain any other assurance of payment that may be required hereunder, if such non-payment or insufficient payment is not cured within ten (10) business days of written notice of the same.  Non-payment/insufficient payment of the amounts set forth herein shall constitute a material breach of this Agreement

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(c)  In the event of a breach of any material term or condition of this Agreement by either Party (other than a failure to pay amounts owed pursuant to this Agreement which is covered under (b) above), in addition to any other available remedies, the other Party may terminate this Agreement upon thirty (30) days written notice, unless the breaching Party cures the breach during the thirty (30)-day period, or, if such breach cannot reasonably be cured with such thirty (30)-day period, the breaching Party begins to cure the breach within such period, notifies the other Party in writing of the steps that it is taking to cure such breach and diligently pursues such cure until completed.

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2.6       Effects of Termination.

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            (a)  In the event Customer terminates the Agreement or if the Agreement is terminated as a result of Customer’s material breach of the Agreement (including non-payment of amounts owed hereunder), or Customer’s dissolution or insolvency prior to the expiration of the Term, Customer shall pay to Metro liquidated damages equal to all unpaid sums owing through the expiration of the remainder of the term of each outstanding Service Order.  Customer agrees that such liquidated damages are reasonable, are not penalties or consequential or indirect damages, but rather represent compensatory damages that are directly related to the costs incurred by Metro in installing facilities and equipment for Customer’s use pursuant to this Agreement.

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            (b)  Upon termination of the Agreement, Metro shall have no further obligation to serve the Customer or provide Services to Customer.  In the event of a termination of the Agreement, as set forth in Section 2.4, Metro shall incur no liability for any disruption or discontinuance of services to Customer or its customers, and Customer shall provide adequate indemnification to Metro against any action brought by Customer’s users related to the same, as set forth herein.  Notwithstanding the foregoing, in the event of a termination of this Agreement, other than as a result of Customer’s breach of the Agreement, Metro shall assist in transitioning Customer to another provider for a period of thirty (30) days following the termination of the Agreement. 

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(c) Upon termination of the Agreement, unless extended to enable Customer to transition to another provider as provided above, or as agreed to by the Parties, Metro will remove all Equipment at Customer’s Premise. 

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Article III:  Payment/Billing

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3.1       Commencement of Billing.  Metro will deliver written or electronic notice (“Connection Notice”) to Customer upon installation of Service.  If Customer notifies Metro within three (3) days after delivery of the Connection Notice that Service is not functioning properly, Metro shall correct any deficiencies and deliver a new Connection Notice to Customer.  The date of delivery of an undisputed Connection Notice is the “Service Commencement Date.”  Charges shall be invoiced and commence on the Service Commencement Date, regardless of whether Customer is prepared to accept delivery. 

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3.2       Installation Fees.  Installation fees or special construction charges will be dictated by the Service Order Form(s).  Such payment shall be due within thirty (30) days following receipt of the first invoice following the Service Commencement Date. 

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3.3       Monthly Charges.  Beginning on the Service Commencement Date, and on the first of each month thereafter, Customer shall pay Metro a MRC (“Monthly Reoccurring Charges”).  If the Service Commencement Date falls on any day other than first day of any month, then the payment for such partial month will be pro rated accordingly.  Rates for all charges will be billed by Service Order for that location.

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3.4       Late Payment.  If Customer fails to pay any sum within thirty days(30) of date invoiced  pursuant to this Agreement, then, in addition to such sum, Customer will pay interest on such unpaid sum at either the highest legal rate of interest permitted in the State of Illinois or one and one- half percent (1.5%) per month.  In addition, If Customer is delinquent in payment of any amounts due hereunder, Metro may request and Customer shall provide a security deposit in such amount as Metro may reasonably request in writing.

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3.5       Taxes.  All sums due and owing hereunder are exclusive of all applicable taxes and regulatory assessments, including telecommunications-related regulatory assessments, sales taxes and duties and levies imposed by any authority, government entity or government agency.  Each Party shall be independently responsible for any taxes and/or regulatory assessments properly payable by that Party with respect to Customer’s use of the Service.  Further, the Parties agree that they will cooperate with each other and coordinate their mutual efforts concerning audits, or other such inquiries, filings, reports, etc., as may relate solely to the activities or transactions arising from or under this Agreement, which may be required or initiated from or by any duly authorized governmental tax authority.

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3.6       Billing Disputes.  The Parties agree that time is of the essence for payment of all invoices/amounts owing hereunder.  In no event, shall Customer be entitled to withhold payment based on a billing or other dispute.  Customer shall provide written notice and supporting documentation for any good-faith dispute it may have with any amount Metro claims to be due and owing (“Dispute”) within twenty (20) business days of the date such payment came due.  If Customer does not report a Dispute within the twenty (20) business day period, Customer shall have waived its dispute rights for such amount.  The Parties will use reasonable efforts to resolve timely Disputes within thirty (30) business days after receipt of the Dispute notice.  If a Dispute is not resolved within the thirty (30) business day period to Customer’s satisfaction, then Customer may commence an action in accordance with the provisions herein, provided that the prevailing Party in such action shall be entitled to payment of its reasonable attorneys’ fees and costs by the other Party.

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3.7       Refund Policy. Refunds are Refunds are issued on case by case basis and details must be approved by appropriate Metro staff before refunds are paid out.  Please call us at 217-728-9056 to request a refund.

 

Article IV:  Representations and Warranties

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4.1       Mutual Representations and Warranties.  Each Party represents and warrants that:

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(a)  It has the full right and authority to enter into, execute, deliver and perform its obligations under this Agreement;

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(b)  It has taken all requisite corporate action to approve the execution, delivery and performance of this Agreement;

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(c)  This Agreement constitutes a legal, valid and binding obligation enforceable against such Party in accordance with its terms, subject to bankruptcy, insolvency, creditors’ rights and general equitable principles; and

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(d)  Its execution of and performance under this Agreement shall not violate any applicable existing regulations, rules, statutes or court orders of any local, state or federal government agency, court or body. 

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4.2       Network Operation and Provision of Services. 

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(a) Service shall be provided by Metro in accordance with the applicable technical standards established for dedicated capacity by the telecommunications industry for a digital fiber optic network.  METRO MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE NETWORK, CAPACITY, TRANSMISSION, LEASED INFRASTRUCTURE, EQUIPMENT, OR ETHERNET SERVICES PROVIDED HEREUNDER, AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR FUNCTION.

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(b) Metro, on its own or through its third-party contractors, will provide, or cause to be provided, the maintenance necessary to maintain the Service in accordance with applicable industry technical standards throughout the Term of this Agreement.

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(c) Metro shall use commercially reasonable efforts to ensure that the Service shall operate in accordance with applicable industry standards.  If Metro determines that the Service is not operating in accordance with applicable industry standards, Metro shall use reasonable best efforts under the circumstances to confirm the Service to the applicable industry standards.

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(d) Metro shall use commercially reasonable efforts to minimize service interruptions, outages and degradations due to maintenance.  

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4.3.      Lawful Use.  Customer represents and warrants that it shall use the Service only for lawful purposes and neither it, nor its employees or agents, shall undertake any conduct that could degrade, damage or disrupt the Network.

 

Article V:  Liability/Indemnification/Insurance

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5.1       Indemnification.  Each Party agrees to indemnify, defend and hold the other, its officers, directors, employees, agents and contractors harmless from and against all loss, damage, liability, cost and expense (including reasonable attorney’s fees and expenses) by reason of any claims or actions by third parties for (i) bodily injury, including death, (ii) damage, loss or destruction or any real or tangible personal property (including without limitation the Network and any equipment at the Customer Premise,) which third party claims arise out of or relate to (a) the Service provided by Metro hereunder, (b) a Party’s performance of or failure to perform any term, condition or obligation under this Agreement, or (c) any act or omission of a Party’s directors, agents, employees, contractors, representatives or invitees; provided, however, Metro shall not be liable and shall not be obligated to indemnify Customer, and Customer shall defend and indemnify Metro hereunder, for any claims by any third party, including Customer’s users, with respect to services provided or made available by Customer and any interruptions of such services, unless the same arises out of Metro’s gross negligence or willful misconduct.  Such indemnification obligations shall survive termination of this Agreement.

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5.2       Limit on Damages.  Except for the gross negligence or willful misconduct of a Party hereto and except where a specific remedy is provided in this Agreement, the liability of each Party to the other Party for damages will be limited to the lesser of Parties’ actual damages or the total Installation Fees and the Monthly Charges paid or payable by Customer.  In no event will either Party be liable to the other Party for any incidental, indirect, special, consequential, exemplary, or punitive damages arising out of or relating to this Agreement or the Service provided hereunder, including damages based on loss of revenues, profits or lost business opportunities, regardless of whether the respective Party had been advised of or could have foreseen the possibility of such damages.

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5.3       Third-Party Liability.  Except as otherwise set forth in this Agreement, nothing contained herein will operate as a limitation on the right of either Party to bring an action for damages against any third party based on any act or omission of such third party as such act or omission may affect the installation, operation, or use of the Service.  Each Party agrees to execute such documents and provide such commercially reasonable assistance, at the claiming Party's sole expense, as may be reasonably necessary to enable the claiming Party to pursue any such action against such third party.

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Article VI: Assignment

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6.1       Assignment.  Neither Party shall assign this Agreement to any other party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, that each Party shall have the right, without the other Party's consent, but with prior written notice to the other Party, to assign this Agreement to any entity controlling, controlled by or under common control with such Party.  Upon any permitted assignment hereunder, the assignee will remain jointly and severally responsible for the performance under this Agreement, unless released in writing by the other Party.  Any permitted assignee will expressly assume all liabilities hereunder prior to the effectiveness of such assignment.  Any attempted assignment without such consent will be null and void and may be deemed by the other Party, in its sole discretion, to constitute a material breach of this Agreement.  The Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigned.

Article VII:  Confidentiality

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7.1       Confidentiality.  Each Party agrees that all information furnished to it by the other Party or to which it has access under this Agreement, except information available in the public domain, shall be deemed the confidential and proprietary information or trade secrets (collectively referred to as “Proprietary Information”) of the Disclosing Party and shall remain the sole and exclusive property of the Disclosing Party (the Party furnishing the Proprietary Information referred to as the “Disclosing Party” and the other Party referred to as the “Receiving Party”).  Each Party shall treat the Proprietary Information and the contents of this Agreement in a confidential manner and, except to the extent necessary in connection with the performance of its obligations under this Agreement or as required by applicable law, neither Party may directly or indirectly disclose the same to anyone other than its employees or agents on a need to know basis and who agree to be bound by the terms of this Section, without the written consent of the Disclosing Party.

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7.2       Publicity. The Parties shall cooperate in developing the content and timing of all press releases and all other publicity related to the transactions contemplated herein.  Neither Party shall issue a press release or other publicity concerning such transactions without the other Party's prior consent.

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Article VIII:  Miscellaneous

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8.1       Force Majeure.  Neither Party will be in breach of this Agreement resulting from delay or prevention of performance of such Party, with the exception of payment of sums due and owing hereunder, which is caused by any act attributable to an occurrence or an event that is caused by or due to causes beyond its control, including, but not limited to, acts of God, fire, earthquake, flood, elements or other catastrophes, strikes, lock-outs, work stoppages or other labor difficulties, utility curtailments, power failures, explosions, insurrections, riots, war, civil disturbances, any law, order, regulation or requests of any government entity or military authority, national emergencies, shortages or failure of equipment or supplies, unavailability of transportation, or acts or omissions of third-parties. 

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8.2       Notices.  All notices, including but not limited to, demands, requests and other communications required or permitted hereunder shall be in writing and shall be deemed to be received (a) if sent by e-mail or facsimile: within twenty-four hours of the time of transmission; (b) if sent by certified US mail:  on the date shown on the U.S. Postal Service postal receipt; or (iii) if sent by hand-delivery or other courier service: on the date of delivery.  All notices shall be addressed to the Parties at the addresses set forth below, or to such other address as each of the Parties hereto may notify the other in writing.

 

To Metro:                                                                    

 

MCC Network Services, LLC 

8 S. Washington Street,

Suite 200

Sullivan, IL 61951

 

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To Customer:

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8.3       Governing Law. This Agreement is subject to the laws of Illinois, excluding its choice of law principles.  The Parties agree that any action to enforce or interpret the terms of this Agreement shall be instituted and maintained only in either the state court of Illinois or in the United States District Court, Central District of Illinois.  Each party hereby consents to the jurisdiction and venue of such courts and waives any right to object to such jurisdiction and venue.  The Parties hereto hereby knowingly waive any rights to a jury trial in respect to any action, proceeding or counterclaim arising out of or based on this Agreement. 

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8.4       Compliance with Laws.  During the term of this Agreement, the Parties shall comply with all local, state and federal laws and regulations applicable to this Agreement and to their respective businesses.

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8.5       Entire Agreement.  This Agreement and all exhibits, addendums and other attachments incorporated herein, represent the entire agreement between the Parties with respect to the subject matter hereof and supersede and merge all prior agreements, promises, understandings, statements, representations, warranties, indemnities and inducements to the making of this Agreement relied upon by either Party, whether written or oral.

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8.6       Severability.  If any term, covenant or condition contained herein shall, to any extent, be invalid or unenforceable in any respect under the laws governing this Agreement, the remainder of this Agreement shall not be affected thereby, and each term, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

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8.7       Headings.  The headings of the sections in this Agreement are strictly for convenience and will not in any way be construed as amplifying or limiting any of the terms, provisions or conditions thereof.

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8.8       No Waiver.  No failure to exercise and no delay in exercising, on the part of either Party hereunder, any right, power or privilege hereunder will operate as a waiver hereof, except as expressly provided herein.

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8.9       Amendment.  This Agreement may not be amended expect pursuant to written instrument signed by each of the Parties.

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8.10     Counterparts.  This Agreement may be executed in multiple counterparts, each of which will constitute one and the same instrument.

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The Parties, by their duly authorized representatives, have executed this Agreement on the dates set forth below.

 

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MCC NETWORK SERVICES, LLC

By:                    

Print Name:

Date:______________________

 

CUSTOMER NAME GOES HERE

By:                                             

Print Name:

Date:_____________________

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