This Master Services Agreement ("MSA") is between L3 Networks, Inc., a California corporation ("L3 Networks", and sometimes referred to herein as "L3", "We", "Us" or "Our") and the signatory to an L3 Networks Service Proposal (""Customer", "Client", "You" and "Your""). By signing an L3 Networks Service Proposal ("Service Proposal") that refers to this Master Services Agreement You are consenting to be bound by the terms contained herein.
Services (“Services”). The Services to be delivered by L3 Networks are identified in the Service Proposal You signed. Those Services and the specific terms applicable to them are described in the Service Proposal and in one or more Service Guides (“Service Guide” or “SG”), if a Service Guide is referenced in the Service Proposal. In the event of any conflict in language appearing in the documents forming and controlling the contractual relationship, or in the event of ambiguity or the need for interpretation regarding the applicable terms and conditions of the contractual relationship, precedence shall be given to the following specific documents in the following order: (a) the Service Proposal shall control, followed by; (b) the Master Services Agreement and lastly; (c) the Service Guide. We reserve the right to change the MSA or the SG from time to time without notice by posting those changes to https://www.L3networks.com/msa for the MSA and to https://www.L3networks.com/sg for the SG. When We do, We will also revise the "last updated" date and provide links to prior versions of the MSA and the SG.
Except for Supplemental Services, and unless otherwise agreed to in writing, the Services We will deliver to You are limited to those Services specifically identified in the Service Proposal and any applicable Service Guides that may be specified in a Service Proposal.
Supplemental Services. L3 Networks has no obligation to perform services outside the scope of an existing Service Proposal. Supplemental Services are limited, additional services You may need on a one-off or ad-hoc basis that are not included within the scope of any existing Service Proposal. You may incur additional fees for Supplemental Services however, We have no obligation to determine the need for, or to provide You any Supplemental Services. All Supplemental Services are provided on an as-is basis and include no warranties of any kind, whether express or implied. In addition, if We determine in Our sole discretion that any additional services You request would be inappropriate for treatment as Supplemental Services under this paragraph, We may deliver to You a separate Service Proposal for such requests. If otherwise approved we will present You with an invoice for the Supplemental Services outside the scope of the Service Proposal based on the Hourly Rates defined in the Service Proposal ("Hourly Rates") for which You will pay all Service Fees as they become due.
Suspension of Services. We may, in Our sole discretion, suspend any Services immediately without notice and You will remain liable for all Service Fees during any period of suspension in the event; (a) You fail to timely pay any undisputed Service Fee when due; (b) We reasonably believe that Your use of the Services violates any applicable law, rule or regulation; (c) Sections 11.1, 11.4 and 18.
Service Start Date. Except in instances in which a delay is caused by the direct fault of L3 Networks, billing for Services commences on the Service Start Date specified on a Service Proposal even though all aspects of the Services may not be installed or functional as of the Service Start Date.
Service Term and Service Fees ("Service Term" and "Service Fees"). The Service Term of a Service Proposal and the Service Fees for the Services are defined in the Service Proposal. The Service Term of a Service Proposal commences on the Service Start Date specified in a Service Proposal and continues for the period specified in the Service Proposal. You may have more than one Service Proposal each with its own Service Fees, Service Term and Service Start Date defined. Subject to compliance with the renewal and notice provisions contained in Section 3.1, the Service Term shall expire at the date of termination or expiration of the Service Proposal. In the event (a) the Service Proposal specifies a Month-to-Month Service Term or (b) it automatically continues on a Month-to-Month basis at the expiration of the current Service Term, the Service Proposal shall automatically renew for successive one-month terms at L3 Networks undiscounted retail rates until either party terminates the Service Proposal according to Section 3.1.
Renewal Term ("Renewal Term"). Except as otherwise provided in Section 3.1 a Service Proposal shall automatically renew upon expiration for successive one-year periods with an increase of 5% to the Service Fees for each subsequent one-year Renewal Term.
Service Fee Adjustments ("Service Fees Adjustments"). We may make Service Fee Adjustments to Service Fees as follows: Sections 2.3, 2.4, 2.5, 2.6 and 2.7.
Material Changes to Services ("Material Changes"). If there are Material Changes to the number of users in Your environment or the Services exceed the numbers, types or quantities indicated on a Service Proposal or is otherwise outside the scope of the Services defined in a Service Proposal, We may; (a) apply pro rata Adjustments to Service Fees based on L3 Networks undiscounted retail rates unless otherwise specified in a Service Proposal, or as otherwise negotiated.
Third-Party Solutions ("Third-Party Solutions"). We may incorporate software, licensing, subscriptions, telcom, carrier, voice, data, wireless or other solutions provided by others which carry their own terms, conditions and pricing charged to L3 Networks, which may be part of Our Services and Fees to You. We may apply pro rata Service Fees Adjustments based on any pricing increases L3 Networks receives from Third-Party Solution vendors. In the event any Third-Party Solution becomes unavailable to Us which are part of the Services We provide to You, We will attempt to find a suitable replacement that may have different pricing which will be reflected with a Service Fee Adjustment to You for the replacement. If no suitable replacement can be found; (a) the charges for those Third-Party Solutions will be removed from Your Service Fees, where applicable on any Service Proposal; (b) only the affected Third-Party Solutions will be removed from your Services on the affected Service Proposal; and (c) the Service Proposal will survive and continue according to its Service Term minus the Service Fees for the affected Third-Party Solution. You acknowledge that changes in terms and pricing for Third-Party Solutions are outside of the control of L3 Networks. L3 will take reasonable steps to avoid removal of Third-Party Solutions from the Services or to implement a suitable replacement to avoid a change in the Services in a material way. In the event the Removal of Third-Party Solutions from the Services becomes unavoidable, which results in a change in the Services in a material way, L3 Networks will not be responsible for any claims or damages You may incur due to the removal of the Third-Party Solution.
Surcharges. L3 Networks may charge additional moneys by adjusting its Service Fees or by imposing Surcharges to recover amounts We are required or permitted by governmental or quasi-governmental authorities to collect from You in support of statutory or regulatory funds or programs. You shall pay all Surcharges owed as they become due following any such Adjustments to Service Fees You also acknowledge your obligation to pay Surcharges that may arise from amounts charged to or levied upon L3 Networks for previously billed Services provided to You based on audits conducted by governmental or quasi-governmental authorities.
Taxes. All Service Fees owed on any Service Proposal are exclusive of any applicable sales, use, excise or services taxes that may be assessed on any of the Services provided by L3 Networks to You. If any Taxes are assessed on any of the Services provided by Us, You shall pay the Taxes directly to the taxing authority or shall reimburse Us for their payment including back Taxes, if applicable.
Private Cloud Power and Facilities Service Fee Increases. ("PC Power and Facilities"). We may Increase Your Service Fees after twelve (12) months in proportion to increases in facilities or electricity costs applicable to the geographic area where Our Equipment and Software are utilized in providing Private Cloud Services to You plus two percent (2%). You shall pay all Service Fees owed as they become due following any such Adjustments to Service Fees.
Pass-Through Expenses. You shall pay L3 Networks reasonable out-of-pocket expenses including travel expenses, lodging, meals, or other similar expenses, which may be incurred by Us in the performance of Services to You. Any such Pass-Through Expenses will be billed at cost plus 10% and invoiced monthly.
Payment Terms ("Payment Terms"). L3 Networks will deliver to You an invoice identifying all charges owed to Us to be paid by You within thirty (30) days following the invoice date ("Payment Deadline"). You agree to automatic payment of all amounts owed to Us using EFT unless We approve Your account for manual billing. You shall pay a late charge of one and one-half percent (1.5%) per month or the maximum lawful rate, whichever is more, for all such amounts not paid within thirty (30) days following the invoice date.
Payment Disputes ("Payment Disputes"). If You dispute in good faith all or any portion of the amount owed to Us, or if You otherwise request a modification to an invoiced amount, You must notify Us in writing of the nature and basis of the Payment Dispute or requested modification prior to the Payment Deadline. If We are unable to resolve the dispute or agree to the modification prior to the Payment Deadline You shall nevertheless pay the entire invoiced amount by the Payment Deadline. If We ultimately determine that such amount or any portion of the amount owed to Us should not have been paid, L3 Networks shall apply a credit equal to such amount against any Service Fees owed for the following month.
Failure to Pay ("Failure to Pay"). If You fail to pay all amounts owed on any Service Proposal when due, then upon at least ten (10) business days prior written notice, and in addition to any other remedies available to Us, We may suspend Services on the affected Service Proposal until full payment is made.
MSA Commencement and Termination. This Master Services Agreement commences on the date You sign a Service Proposal identifying this MSA and subject to Section 4.4 will remain in effect until all Service Proposals bound by this Master Services Agreement are terminated as provided herein.
Termination Upon Expiration ("Termination Upon Expiration"). Except as provided in a Service Proposal or herein, either party may discontinue Services and terminate a Service Proposal upon the expiration of the current Service Term or Renewal Term of a Service Proposal by providing at least ninety (90) days’ notice prior to the expiration of the current Service Term or Renewal Term. To be effective, notice must be submitted in writing in accordance with Section 4.0.
Termination for Convenience ("Termination for Convenience"). You may terminate a Service Proposal by written notice to the other party at least (90) days before the requested termination date. However, if You wish to Terminate for Convenience as provided in the preceding sentence You must pay L3 Networks as liquidated damages a Termination Fee ("Termination Fee") and any other amounts payable by You pursuant to Section 3.3. The Termination Fee shall be equal to 100% of the Service Fees You would have had to pay L3 Networks for the remaining Service Term or Renewal Term on each terminated Service Proposal. You acknowledge and agree that; (a) L3 Networks is only agreeing to provide You a right to Terminate for Convenience conditioned upon Your payment of the Termination Fee, and that absent payment of the Termination Fee, You shall have no right to Terminate for Convenience the affected Service Proposals under this Section 3.2; (b) L3 Networks will incur considerable consequences and losses in the event of a Termination for Convenience by You prior to the expiration of the current Service Term or Renewal Term; (c) such consequences and losses would be difficult, if not impossible to estimate; and (d) the Termination Fee is a reasonable pre-estimate of the consequences and losses that L3 Networks would actually incur in the event You terminate a Service Proposal prior to its expiration.
Consequences of Termination ("Consequences of Termination"). Upon termination of a Service Proposal for any reason (other than termination by You under Section 3.4 or termination upon expiration of the Service Term of a Service Proposal pursuant to Section 3.1), You shall immediately pay to L3 Networks; (a) all charges incurred by L3 Networks arising from such termination; (b) all unpaid Service Fees and (c) the Termination Fee. You agree to pay all amounts owing pursuant to this Section 3.3 on or before the termination date.
Material Breach. Except as provided in Section 3.5; either party may terminate a Service Proposal if the other party materially breaches this Master Services Agreement or a Service Proposal and fails to cure the breach or take appropriate and complete steps to cure the breach (which for reasons outside of said party’s control does not or will not result in curing the breach) within thirty (30) days following receipt of written notice from the non-breaching party. This Section 3.4 does not apply to breaches relating to the payment of Service Fees, which are addressed under Sections 1.2 and 3.5. L3 Networks may terminate a Service Proposal for cause immediately if You file for bankruptcy, become insolvent or make an assignment for the benefit of creditors or if a trustee or receiver is appointed to administer a substantial portion of the Your assets or business.
Following Suspension of Services ("Following Suspension of Services"). In the event Your Services are suspended for failure to timely pay any undisputed Service Fees pursuant to Section 1.2 L3 Networks may, without further notice and obligation to You terminate this MSA and any Service Proposals. If Your Services are suspended for any other reason pursuant to Section 1.2 and such suspension continues for more than 10 days, We may, without further notice and obligation to You, terminate this MSA and any Service Proposals.
Notice. Except as otherwise provided under this MSA, all Notices to be given by either party to the other party shall be in writing and shall be deemed to have been duly given on the date delivered in person, or sent via electronic mail or on the date of the third business day after deposit, postage prepaid, in the US mail or via certified mail, return receipt requested, and addressed as set forth on the Service Proposal. The address to which such Notices are to be given by either party may be changed by written Notice given by such party to the other party pursuant to this Section 4.0.
Force Majeure. We will not be liable for any failure of performance of the Services due to causes beyond our reasonable control, including, but not limited to, pandemics, epidemics, fire, flood, electric power interruptions, national emergencies, civil disorder, acts of terrorism, riots, strikes, natural causes, or any law, regulation, directive, or order of the United States government, or any other governmental agency, including state and local governments having jurisdiction over L3 Networks, You or any of Your operations, offices, personnel or the Services provided hereunder.
Some or all of the Services require the skill, knowledge, familiarity, efforts, training and availability of L3 Networks’ employees. Should L3 Networks be unable to provide the Services on a continued and uninterrupted basis due to illness, mandatory quarantines, curfews or government mandate rendering L3 Networks employees unavailable, L3 Networks shall be excused from performance of the Services and shall have no liability for failure to provide same.
Waiver. No delay in exercising, no course of dealing with respect to, and no partial exercise of, any right or remedy hereunder will constitute a waiver of any right or remedy, or future exercise thereof.
Assignment. Neither party may assign this MSA or any Service Proposal, in whole or in part, or any of its rights or obligations hereunder to another party without the prior written consent of the other party We may suspend all Services pursuant to Section 1.2 and We may terminate any Service Proposals in accordance with Section 3.4 if You make any unauthorized assignments However, L3 Networks may assign or otherwise transfer its rights, interests and obligations under this MSA or any Service Proposal without Your consent in the event of a change in control of 50% or more of the equity of L3 Networks, the sale of substantially all the assets of L3 Networks, or the restructuring or reorganization of L3 Networks or its affiliate entities.
Survival. Our respective duties and obligations with respect to proprietary rights, intellectual property (including but not limited to all of Sections 6, 7, 8 and 10) as set forth in this MSA; and other rights and obligations as set forth in this MSA which by their nature continue after the termination of this MSA (including, but not limited to all of Sections 14, 15, 16 and 17) will survive and remain in effect, notwithstanding the termination or expiration of this MSA or of any affected Service Proposal.
Governing Law. This MSA is to be governed by and construed in accordance with the laws of the State of California.
Severability. The provisions of this MSA and any Service Proposals are severable. If any provision is determined invalid, illegal or unenforceable, in whole or in part, then such provision shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision cannot be modified to be enforceable, the provision shall be severed from this MSA or the SP to the extent unenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.
Insurance. Each party shall maintain commercial general liability insurance with individual policy limits of not less than $1,000,000 per occurrence. Customer’s insurance shall be primary and noncontributory over L3 Networks insurance. Customer waives and shall require its insurers to waive any rights of subrogation against L3 Networks, its agents, directors and employees.
Amendment. L3 Networks may, from time to time, in its sole discretion, and for any reason, amend this MSA posted on our website and any Service Guides. However, the MSA and Service Guides referenced on the Service Proposal You signed will govern our relationship for those specific Service Proposals until this MSA expires or is replaced by Your written approval.
Delegation (“Delegation”). You may not Delegate any Customer management, roles, responsibilities or other Customer functions under this MSA or on any Service Proposal to another party, contractor, consultant, company, temp employee, part-time employee or outsource agency (“Outsourcer”) to act on Your behalf. L3 Networks will provide the Services to You and interface directly with You in Our communications, and You will interface directly with us in Your communications. L3 Networks will not work with or communicate through an Outsourcer; or report to or take direction from or interface in any capacity with an Outsourcer.
Additional Beneficiaries (“Additional Beneficiaries”). This MSA is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein is to be construed to give any person or entity, other than the parties hereto and their respective successors and permitted assigns, any legal or equitable rights hereunder. However, notwithstanding the preceding sentence, Microsoft Corporation (“Microsoft Corporation”) is an intended, Additional Beneficiary of this MSA with respect to any rights or obligations pertaining or related to Your usage of software products provided through or licensed from Microsoft Corporation, and Microsoft Corporation has the right to enforce those provisions and to verify Your compliance with those provisions.
Cooperation (“Cooperation”). You will Cooperate reasonably and in good faith with Us in Our performance of the Services by, and without limitation by; (a) allocating sufficient Customer resources and timely performing of any Customer tasks reasonably necessary to enable Us to perform Our obligations under each Service Proposal; (b) timely delivery of any materials and other obligations required from You under each Service Proposal; (c) timely responding to Our inquiries related to the Services; (d) assigning at least one individual from Your organization for each Service Proposal to serve as a primary point of contact for Us; (e) actively participating in scheduled meetings; (f) providing, in a timely manner and at no charge to Us, office workspace, telephone and other facilities, suitably configured computer equipment with Internet access if applicable; (g) providing access to Your appropriate and knowledgeable employees and agents, and providing continuous administrative access to any Customer Equipment or Customer Software; (h) providing complete, accurate and timely information, data and feedback all as reasonably required; and (i) adhering to our required processes as outlined in the respective Service Proposals and Service Guides if applicable and this MSA.
Independent Contractor. Unless otherwise agreed, L3 Networks will perform all Services solely in Our capacity as an Independent Contractor and not as Your employee, agent or representative.
Reservation of Rights. In providing Services to You, We may utilize any or all of the following; (a) L3 Networks’ name, logo, domain name, and product and product names associated with the Services; (b) other trademarks and service marks; (c) software and other works of authorship; and (d) other technology, hardware, processes, know-how, techniques, designs, inventions and other tangible or intangible technical material or information. All such information and property are the property of L3 Networks ("L3 Networks Technology"). L3 Networks Technology is covered by intellectual property rights owned by or licensed to Us collectively, ("L3 Networks IP Rights"). Other than as set forth in these terms, no license or other rights in or to L3 Networks Technology or L3 Networks IP Rights are granted to You, and all such licenses and rights are hereby expressly reserved.
License Grant. L3 Networks grants You a non-exclusive, non-transferable, non-sublicensable right to access and use the Services and L3 Networks Technology as set forth herein.
License Restrictions. You shall not; (a) modify, copy or create derivative works based on the Services or on L3 Networks Technology; (b) build a product or service using similar ideas, features, functions or graphics of the Service; or (c) copy any ideas, features, functions or graphics of the Service. Additional license restrictions may be set forth in this MSA or an applicable Service Guide.
Improvements to Services. You hereby assign to L3 Networks all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or Your users relating to any proposed improvements of or modifications to the Services.
Third-Party Solution Vendors (“3PSV”). We may incorporate software, licensing, subscriptions, telcom, carrier, voice, data, wireless or other solutions provided by others which carry their own terms, and conditions. Some components of the Services L3 Networks provides to You may include services and licenses from 3PSV’s. Your use of all such components is subject to the terms of this MSA. L3 Networks, and not the 3PSV’s, will provide any and all technical support related to the Services, including support related to those 3PSV components. However, under certain circumstances, pursuant to the terms of applicable 3PSV licenses or services or agreements, L3 Networks may be obligated to provide certain information to those 3PSV’s regarding the Services and Your identity. You consent to such disclosures.
Third-Party License Agreement (“3PLA”). The Services specified on a Service Proposal may include or incorporate one or more software components provided by a 3PLA. Your use of those components may be governed by the terms and conditions contained in an agreement from the 3PLA providing that component. You hereby authorize L3 Networks to accept, on Your behalf, any such 3PLA license agreement, as L3 Networks determines in its sole discretion to be necessary to deliver the Services to You or as required by the 3PLA. Copies of any 3PLA license agreement accepted on Your behalf can be provided to You by making a written request to Us.
LICENSE ACCEPTANCE DISCLAIMER. YOU UNDERSTAND THAT OUR ACCEPTANCE OF ANY SUCH THIRD-PARTY LICENSE AGREEMENTS ON YOUR BEHALF WILL BIND YOU TO THE TERMS OF THOSE LICENSE AGREEMENTS. WE ACCEPT NO RESPONSIBILITY OR LIABILITY ARISING FROM ANY BREACH OF A THIRD-PARTY LICENSE AGREEMENT ACCEPTED ON YOUR BEHALF.
L3 Networks Equipment (“L3 Networks Equipment”). We may supply L3 Networks Equipment to You that
We own as part of the Services we deliver to You, such L3 Networks Equipment may be computer, networking or
hardware, racking, or any other that; (a) We may install on Your premises; or (b) We ship to Your location to
facilitate the delivery of Services; or (c) We provide in a datacenter environment. L3 Networks Equipment does
not include any
hardware or other devices that We may sell to You or that We may procure for You on Your behalf or that
belongs to You ("Customer Equipment") that we may access or use in connection with delivering Our
Services to You. L3
Networks is and will remain the sole owner of any L3 Networks Equipment, which is supplied to You as part of
the Services we deliver to You. Neither this MSA or any SP transfers to You L3 Networks Equipment ownership
rights of any kind.
We retain sole discretion to determine the appropriate L3 Networks Equipment and associated software to be used in the delivery of the Services to You, provided that our determination does not materially impair the availability or delivery of Services under the Service Proposal. We also retain sole discretion to determine the necessity of maintenance, repairs and upgrades or improvement of the L3 Networks Equipment.
Except as otherwise may be specified in an applicable Service Proposal, L3 Networks makes no independent representations or warranties with respect to the L3 Networks Equipment. Any hardware vendor warranties are Our exclusive remedies with respect to such L3 Networks Equipment. In the event of L3 Networks Equipment malfunction, We will take commercially reasonable steps to ensure that You receive the benefit of any manufacturer warranties applicable to the L3 Networks Equipment in use by You.
You shall take reasonable care of the L3 Networks Equipment and shall not damage it, tamper with it, move or remove it, attempt to repair it, or attempt to install any software on it. You are financially responsible, up to the full replacement value of all L3 Networks Equipment, for all damage to or loss of the L3 Networks Equipment used by You, other than loss or damage caused by L3 Networks.
You are responsible for providing the necessary power, network connection and appropriate environment to support the L3 Networks Equipment at Your locations unless otherwise specified in a Service Proposal. You shall not remove any sign, label or other marking on the L3 Networks Equipment identifying L3 Networks as the owner of the L3 Networks Equipment. You do not acquire and will not acquire any rights of ownership in the L3 Networks Equipment by this MSA or a Service Proposal, and You do not have and will not have, by operation of law or otherwise, any lien or other similar right over or in relation to the L3 Networks Equipment. On termination of any Service Proposal where We deliver L3 Networks Equipment to You, You shall allow L3 Networks and its employees and contractors reasonable access to Your premises to remove the L3 Networks Equipment. Alternatively, upon our request, You shall return the L3 Networks Equipment to Us via the carrier of our choice, for which We will pay all applicable shipping charges.
L3 Networks Software (“L3 Networks Software”). We may supply L3 Networks Software to You that we own or are otherwise authorized to provide on a rental or subscription basis ("L3 Networks Software") This MSA does not transfer any right, title, or interest in L3 Networks Software to You that may be; (a) L3 Networks Software installed on L3 Networks Equipment; (b) L3 Networks Software provided by L3 Networks for installation onto Your computer equipment to facilitate the delivery of the Services; or (c) L3 Networks Software provided as part of Our Services to You. Your use of L3 Networks Software is subject to Section 6.5 In addition, You shall not, and shall not permit any others to; (d) distribute copies of L3 Networks Software or any part thereof to any others; (e) tamper with, remove, reproduce, modify or copy L3 Networks Software or any part thereof; (f) provide, rent, sell, lease or otherwise transfer L3 Networks Software or any copy or part thereof or use it for the benefit of others, or (g) reverse assemble, reverse compile or reverse engineer L3 Networks Software or any part thereof, or otherwise attempt to discover any L3 Networks Software source code or underlying proprietary information.
L3 Networks Carrier Services (“L3 Networks Carrier Services). We may supply L3 networks Carrier Services to You that We own or are otherwise authorized to provide on a wholesale or resale basis to You. This MSA does not transfer any right, title, or interest in L3 Networks Carrier Services to You that may be; (a) L3 Networks Carrier Services configured on L3 Networks Equipment; (b) L3 Networks Carrier Services provided by L3 Networks for installation at Your facilities on Your equipment to facilitate the delivery of the Services; or (c) L3 Networks Carrier Services provided as part of Our Services to You. Your use of L3 Networks Carrier Services is subject to Section 6.4 In addition, You shall not, and shall not permit any others to; (d) provide, rent, sell, lease or otherwise transfer L3 Networks Carrier Services or any part thereof or use it for the benefit of others, or (e) reverse assemble, reverse compile or reverse engineer L3 Networks Carrier Services or any part thereof, or otherwise attempt to discover any L3 Networks Carrier Services configurations, passwords, account information, source vendors, pricing, contracts or other underlying proprietary information.
L3 Networks will provide Services to the Customer subject to the availability and operational limitations of systems, facilities and equipment. Services may be provided using L3 Networks Equipment or by Third-Party Solutions equipment that may be located at the Customer's locations, title to the L3 Networks Equipment or Third-Party Solutions equipment will remain with L3 Networks or the Third-Party Solution vendor. Customer must provide adequate space and electric power for L3 Networks Equipment or Third-Party Solutions equipment and keep it physically secure and free from liens and encumbrances. Customer will bear the risk of loss or damage to the L3 Networks Equipment or the Third-Party Solutions equipment (other than ordinary wear and tear), except to the extent caused by L3 Networks, its vendors or its agents. Customer will in a timely manner allow L3 Networks, its agents or vendors access as reasonably required for proper operation of the Services and L3 Networks Equipment or Third-Party Solutions equipment or other equipment that the Customer controls and will obtain at Customer’s expense timely access as reasonably required for the Services to be verified. L3 Networks will coordinate with and, except in an emergency, obtain Customer’s consent to enter upon Customer’s property and premises, which consent shall not be unreasonably withheld.
Access Rights (“Access Rights”) means the right to construct, install, repair, maintain, replace and remove access lines and network facilities and the right to use ancillary equipment space within a building for Customer’s connection to the network at Customer’s cost unless otherwise negotiated. Customer must provide L3 Networks timely information and access to Customer’s facilities and equipment as L3 Networks reasonably requires for the Services, subject to Customer’s reasonable security policies. Customer will furnish any conduit, holes, wire ways, wiring, plans, equipment, space, power/utilities and other items as L3 Networks reasonably requires for the Services at the Customer’s cost unless otherwise negotiated and Customer will obtain any necessary licenses, permits and consents (including easements and rights-of-way) at the Customer’s cost unless otherwise negotiated. Customer will have the site ready for L3 Networks, its affiliates or vendors to perform its work according to a mutually agreed schedule.
Disclaimer of Liability. L3 NETWORKS WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATING TO: INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, DATA, EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; SERVICE DEFECTS, SERVICE LEVELS, DELAYS OR ANY SERVICE ERROR OR INTERRUPTION, INCLUDING INTERRUPTIONS OR ERRORS IN ROUTING OR COMPLETING ANY 911 OR OTHER EMERGENCY RESPONSE CALLS OR ANY OTHER CALLS OR TRANSMISSIONS; LOST OR ALTERED MESSAGES OR TRANSMISSIONS; OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF CUSTOMER’S (OR ITS AFFILIATES’, USERS’ OR THIRD PARTIES’) APPLICATIONS, CONTENT,DATA, PROGRAMS, INFORMATION, NETWORKS OR SYSTEMS.
Confidential Information (“Confidential Information”). During performance of Our Services to You, either party may be exposed to, or may acquire the other’s Confidential Information. Each party shall hold all such Confidential Information in strict confidence and shall not disclose any such information to others. Confidential Information includes but is not limited to; (a) with respect to L3 Networks, L3 Networks unpublished prices for Services, audit and security reports, server and network configuration designs and other proprietary technology, (b) with respect to You, content transmitted to or from, or stored by You on, L3 Networks servers, and (c) with respect to both parties, other information that is conspicuously marked as "confidential" or if disclosed in non-tangible form, is verbally designated as "confidential" at the time of disclosure and confirmed as confidential in a written notice given within one (1) day of disclosure.
Privacy. Each party is responsible for complying with the privacy laws applicable to its own business. Our obligations in regard to compliance with applicable privacy laws and regulations in relation to Our Services to You arise only to the extent compliance is required by Us based upon the nature of Our Services to You and only to the extent You provide access to Us of Personal Data. Otherwise, We are not responsible for the privacy of Personal Data You collect, possess or process.
Customer Software (“Customer Software”). You represent and warrant that You have title to or license to or rights to use or modify and have license or rights to permit L3 Networks to use, access or modify any Customer Software that You have provided to Us and you have requested L3 Networks to use to access or modify as part of the Our Services to You. To the extent that You have asked Us to deploy any software products on L3 Networks Equipment under any licenses owned by You, You further represent and warrant that You have obtained and will be solely responsible for maintaining throughout the Service Term all licenses required to support such usage, pursuant to the terms of license agreements pertaining to those Client Software products You provide.
Audit Rights. You shall take no action to interfere with Our ability to verify what L3 Networks Software or Customer Software products are installed, accessed or used on, or within, or through any environments where we provide Services to You. This includes but is not limited to any action that limits our ability to create domain or root or administrator-level user accounts on any of the L3 Networks Equipment, Customer Equipment, L3 Networks Software or Customer Software for audit purposes. We may suspend all Services pursuant to Section 1.2 or terminate any Service Proposals in accordance with Section 3.4 if You breach Your obligations under this Section 11.1 and fail to remedy such breach.
Customer Disconnects and Renewals. You are responsible for disconnecting or renewing any services not provided to You by Us including carrier services, domain renewals, subscriptions and any other services provided to You by others. We will not be liable for any claims or damages for due to Your failure to renew or cancel services not provided by Us.
Customer Network Security. Unless specifically agreed to in a Service Proposal or defined in an applicable Service Guide, it is Your sole responsibility to determine whatever actions deemed necessary to make Your data and network secure from unauthorized access. L3 Networks is not responsible for the security of Your data, network, systems and circuits, or for any damages that may result from any security breach, malware, unauthorized access or any other security incident You may experience.
Theft of Service. You shall notify Us immediately, in writing, by electronic mail or by calling the L3 Networks customer support line if You become aware at any time that the Services are being stolen or used fraudulently. If You fail to do so in a timely manner We may suspend all Services pursuant to Section 1.2 and may terminate any Service Proposal in accordance with Section 3.4. You will be liable for Service Fees related to both the use and misuse of the Services. Credits will not be issued for Service Fees resulting from Theft of Service that arises out of hacking into any L3 Networks Equipment, Customer Equipment, L3 Networks Software or Customer Software. This includes but is not limited to; (a) password hacking; (b) systems penetration; (c) exploitation of system vulnerabilities or other Theft of Service arising out of a failure of Your internal procedures. L3 Networks will not issue any credits for Theft of Service resulting from Your negligent or willful acts, or those of an authorized or unauthorized user of Your Services.
User Credentials. We may issue to You User Credentials allowing You to access the Services. All User Credentials are L3 Networks Confidential Information. You shall not share any User Credentials with any outside party without our prior written consent. User Credentials may be distributed to Your authorized employees to access the Services, but no User Credentials may be transferred to or shared with an outside party without our written approval. We reserve the right to require that you change your User Credentials passwords at any time, with reasonable notice. All User Credentials will automatically expire at the end of the Service Term or Month-to-Month term of a Service Proposal.
Service Warranty. We warrant that the Services will be performed in a professional and workmanlike manner and as described in an applicable Service Proposal and the associated Service Guide if applicable.
Service Level Agreement ("SLA"). L3 Networks guarantees 99.5% uptime on all (“Private Cloud Services”) except for service downtimes resulting from Client’s fault. If we fail to meet this guarantee, you will be eligible for a credit calculated as a percentage of the Service Fee for the affected service, and based on the percentage of service availability of the affected service in a given monthly billing period as follows:
|99.50% - 99.0%||2%|
|98.99% - 98.0%||5%|
|97.99% - 97.5%||7.5%|
|Less than 97.5%||10%|
The SLA provides a specified credit remedy for an identified failure to deliver or provide the Private Cloud Services to the identified standard. The liquidated damages payable under this Section 12.1 shall be Your only remedy for L3 Networks failure to meet those guarantees for which credits are provided; and the parties agree that the credits are not a penalty, are fair and represent a reasonable estimate of loss that may be anticipated from any failure to meet the identified standards. The maximum credits for failures to meet any applicable Service Level Agreement for any calendar month shall not exceed 50% of the current monthly Service Fee for the Private Cloud Services.
Maintenance Windows. Unless otherwise agreed, daily maintenance windows will be from 6:00 PM to 6:00 AM (U.S. Pacific time). Routine equipment and software maintenance and upgrades will occur during maintenance windows, and some applications, systems or devices may be unavailable or non-responsive during such times. Notice will be provided to the Client and agreed to before performing any such maintenance. Downtime associated with scheduled and approved Maintenance Windows will not qualify for SLA credits.
WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN SECTION 12, L3 NETWORKS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, L3 NETWORKS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. THERE ARE RISKS INHERENT WITH INTERNET CONNECTIVITY, PRIVATE NETWORK CONNECTIVTY AND VENDOR PRODUCTS AND SERVICES THAT COULD RESULT IN THE TEMPORARY LOSS OF SERVICE AVAILABILITY. IN ADDITION, CLIENT ACKNOWLEDGES THAT THIS AGREEMENT CONVEYS NO WARRANTIES, EXPRESS OR IMPLIED, BY ANY L3 NETWORKS SOFTWARE PRODUCTS MADE AVAILABLE TO CUSTOMER BY L3 NETWORKS AND THAT L3 NETWORKS AND THOSE VENDORS DISCLAIM ANY AND ALL LIABILITY, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, ARISING FROM THE SERVICES.
No-Hire Agreement. You agree during any applicable Service Term or Renewal Term of a Service Proposal and for a period of (18) months from the termination of the last applicable Service Term or Renewal Term of a Service Proposal not to directly or indirectly, alone or on behalf of any person or entity, hire any person who is an employee of L3 Networks, without the prior written consent of L3 Networks. In addition, You agree not to directly or indirectly, assist any person or entity in performing any activity prohibited by this Section 14.0. You acknowledge that injury resulting from any breach of this provision would be significant and irreparable and that it would be extremely difficult to ascertain the actual amount of damages resulting from such breach. Therefore, in the event of a violation of this provision and in addition to any other right L3 Networks may have at law or in equity, You must pay L3 Networks as liquidated damages a one-time payment equal to the amount of one-hundred percent (100%) of the affected employee's base salary for an (18) month period. Both parties agree that such amount is not intended as a penalty and is reasonably calculated based on the projected costs the injured party would incur to identify, recruit, hire and train suitable replacements for any such personnel.
Arbitration Procedures. Both parties shall attempt to settle amicably by mutual discussions any and all disputes, differences, or claims between them within sixty (60) days of the date any such dispute or claim arises. Failing such amicable settlement, any such dispute or claim, including but not limited to claims related to the existence, validity, interpretation, performance, termination or breach of this MSA or a Service Proposal, shall be submitted first to non-binding mediation before a neutral third party and if no resolution is reached, then the dispute shall be decided by arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules before the American Arbitration Association ("AAA"). The arbitration will be conducted in English and the arbitrator will not have the authority to award punitive damages to either party. Each party will bear its own expenses but will share equally the expenses of the arbitrator and the AAA. Any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction. The arbitration will be held in Los Angeles County, California, or at another location upon which both parties may agree. Notwithstanding the foregoing, claims for preliminary injunctive relief, other pre-judgment remedies, and claims for Your failure to pay Service Fees may be brought in a state or federal court and jurisdiction and venue for any such action shall be exclusively in the state or federal courts located in Los Angeles County, California. The parties waive any other choice of venue.
Continued Service. Unless L3 Networks is bringing an action for Your failure to pay Service Fees for Services not otherwise in dispute, or unless a Service Proposal has been terminated or expires according to its terms, We will continue to provide Services under the Service Proposal, and You shall continue to make payments to Us, in accordance with this MSA and the Service Proposal, during the period in which the parties seek resolution of the dispute.
Period for Bringing Claim. No claims to be resolved may be made more than six (6) months after the date by which the fault or failure should reasonably have been discovered failure to make such a claim within the six (6) month period shall forever bar the claim.
Customer Indemnification. You shall defend, indemnify and hold L3 Networks harmless against all costs and expenses, including reasonable attorney’s fees, associated with the defense or settlement of any claim that; (a) L3 Networks use, access or modifications of any L3 Networks Software or Customer Software that You have requested that We use, access, provide or modify as part of the Services infringes on any patent, copyright, trademark, trade secret, license agreement, or other intellectual property right; (b) Your use of any Services we provide to You is in violation of any requirements or representations in this MSA or a Service Proposal, or (c) Your use of any Services We provide to You violates any license agreement, law or infringes any patent, copyright, trademark, trade secret or other intellectual property right. You further shall pay any judgments or settlements based on any such claims. In addition, if We receive any demand to pay any penalty or to purchase any L3 Networks Software or Customer Software licenses or support services following any L3 Networks Software or Customer Software audit revealing unlicensed usage of any L3 Networks Software or Customer Software product, You shall reimburse Us the full amount of any such penalty or software license or support services purchase plus any fees associated with the action. Furthermore, We have no obligation to validate or to challenge any such audit findings. You shall further defend, indemnify and hold L3 Networks harmless against all costs and expenses, including reasonable attorney’s fees, associated with the defense or settlement of any claim that arises from or relates to Your conduct or conduct by Your employees or other persons over whom You have control or whose actions are performed for Your benefit or at Your direction.
L3 Networks Indemnification. We shall defend, indemnify and hold You harmless against all costs and expenses, including reasonable attorney’s fees, associated with the defense or settlement of any claim that any of the Services We provide infringe any patent, copyright, trademark, trade secret or other intellectual property right. We shall further defend, indemnify and hold You harmless against all costs and expenses, including reasonable attorney’s fees, associated with the defense or settlement of any claim that arises from or relates to L3 Networks conduct or conduct by L3 Networks employees or other persons over whom We have control or whose actions are performed for L3 Networks benefit or at L3 Networks direction.
DISCLAIMER. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST REVENUE AND LOST PROFITS), REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. L3 NETWORKS SHALL NOT BE LIABLE, IN CONTRACT, TORT OR ANY OTHER THEORY FOR; (A) UNAUTHORIZED ACCESS, ALTERATION, THEFT, CORRUPTION OR DESTRUCTION OF OR TO CLIENT’S OR CLIENT’S CUSTOMERS’, END USERS’ OR OTHER PARTIES’ COMPUTER FILES, DATABASES, NETWORK, TRANSMISSION FACILITIES OR EQUIPMENT; OR (B) THE CONTENT, ACCURACY OR COMPLETENESS OF ANY CUSTOMER CONTENT TRANSMITTED THROUGH THE SERVICES.
LIABILITY CAP. L3 NETWORKS TOTAL LIABILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY AND ALL CLAIMS AND DAMAGES INCLUDING SLA CREDITS ARISING FROM OR OUT OF THIS MSA OR ANY SP SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO L3 NETWORKS DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE DAY THE ACTS OR OMISSIONS OCCURRED, OR $50,000 WHICHEVER IS LESS.
Marketing. Customer agrees that L3 Networks may reference Customer’s entering into a contractual agreement and its status as a Customer in its marketing materials and in sales presentations.
Recording of Calls. Customer acknowledges that in the performance of the Services, L3 Networks may have access to and or collect (“Personal Data”) regarding Customer’s employees or its customers. Any calls originating from L3 Networks employees or placed to L3 Networks employees are subject to recording. Customer warrants that it has obtained consent, as necessary, from its employees and its customers for the collection, use, and transfer of Personal Data by L3 Networks.
Acceptable Use Policy ("AUP"). You shall comply with all policies for acceptable use contained within the Acceptable Use Policy ("AUP"). The following lists examples of direct violations of this AUP and will be subject to Section 1.2.
Copyright and Trademark Infringement. Direct copyright infringement (as defined and noted under Title 17, Section 512 of the United States Code) and trademark infringement are direct violations of L3 Networks AUP.
Unsolicited Email. The sending or receiving of mass unsolicited email (SPAM) is a direct violation of L3 Networks AUP. This includes the direct sending and receiving of such messages, support of such messages via web page, splash page or other related sites, or the advertisement of such services.
Email Bombing. The sending, return, bouncing or forwarding of email to specified user(s) in an attempt to interfere with or over flow email services is a direct violation of L3 Networks AUP.
Proxy Email (SPAM). The use of dedicated services to proxy email unsolicited users is a direct violation of L3 Networks AUP. Proxy email is defined as the use of dedicated services to act in concert with other services located inside and outside the network to achieve mass unsolicited email (SPAM) to unrelated third parties.
UseNet SPAM. The use of dedicated services to send, receive, forward, or post UseNet unsolicited email or posts is a direct violation of L3 Networks AUP. This includes UseNet services located within the L3 Networks network or unrelated third party networks.
Illegal Use. Any use of dedicated services in a manner which is defined or deemed to be statutorily illegal is a direct violation of L3 Networks AUP. This includes, but is not limited to: death threats, terroristic threats, and threats of harm to another individual, multi-level marketing schemes, ponzi schemes", invasion of privacy, credit card fraud, racketeering, and other common illegal activities.
Child Pornography. L3 Networks has a zero-tolerance policy on child pornography and related sites. The hosting of child pornography or related sites or contact information is in direct violation of federal law and L3 Networks AUP.
Threats & Harassment. The L3 Networks network can be utilized for any type of individual, organizational or business use. This does not include threats to or harassment of individuals, organizations or businesses, unless it falls within the bounds of protected free speech under the First Amendment of the United States Constitution. L3 Networks seeks to serve only as the medium of exchange for information and refrains from decisions on freedom of speech.
Fraudulent Activities. L3 Networks prohibits utilizing dedicated services or network services for fraudulent activities. Participation in fraudulent activities is in direct violation of state and federal law and L3 Networks AUP.
Denial of Service. L3 Networks absolutely prohibits the use of dedicated services or network services for the origination or control of denial of service attacks or distributed denial of service attacks. Any relation to DOS or DDOS type activity is a direct violation of L3 Networks AUP.
Terrorist Websites. L3 Networks prohibits the use of dedicated services for the hosting of terrorist-related web sites. This includes sites advocating human violence and hate crimes based upon religion, ethnicity, or country of origin.
Distribution of Malware. L3 Networks prohibits the storage, distribution, fabrication, or use of malware, including without limitation, virus software, root kits, password crackers, adware, key stroke capture programs and other programs normally used in malicious activity. Programs used in the normal ordinary course of business are deemed acceptable. Example: Security Company hosting at L3 Networks analyzes the latest root kit for new security analysis/software.
Phishing. L3 Networks strictly prohibits any activity associated with Phishing or systems designed to collect personal information (name, account numbers, usernames, passwords, etc.) under false pretense. Splash pages, phishing forms, email distribution, proxy email or any relation to phishing activities will result in immediate removal.
Reporting Violation of the Acceptable Use Policy. L3 Networks accepts reports of alleged violations of this AUP. Reports of alleged violations must be verified and must include the name and contact information of the complaining party, and the IP address or website allegedly in violation, and description of the violation. Unless otherwise required by law, such as the DMCA, L3 Networks owes no duty to third parties reporting alleged violations due to lack of privity in contract law. L3 Networks will review all verified third party reports and will take appropriate actions.
“3PSV” or “3PLA”
means additional terms and conditions are incorporated in a Service Proposal from Third-Party Solutions which contain additional specific product or licensing obligations from the Third-Party Solution.
means the American Arbitration Association.
means, collectively, the MSA and any applicable Service Proposal, Service Guides, or other addenda which govern the provision of Services.
means L3 Networks Acceptable Use Policy contained in the MSA.
“Consequences of Termination”
means the process that occurs after Termination for Convenience.
means You will work with us in good faith so we can timely complete our work and bill for the Services.
means equipment owned by the Customer.
means software owned, licensed or subscribed by the Customer.
means You delegate Customer management and oversight responsibilities to an Outsourcer.
“Failure to Pay”
means You fail to pay all amounts owed when due.
means hourly charges for work outside the scope of any Services we provide to You. Hourly Rate Tiers are calculated based on Pacific Time.
“L3 Networks Carrier Services”
means Third-Party Solutions for telcom, carrier, voice, data, or wireless services We contract or subscribe to as part of the delivery of Our Services to You.
“L3 Networks Equipment”
means equipment owned by L3 Networks and provided to the Customer for their use as part of the Services.
“L3 Networks Software”
means software owned, licensed or subscribed to by L3 Networks from Third-Party Solutions and provided to the Customer for their use as part of the Services.
“L3 Networks Technology”
is defined in Section 6.0
means an increase in usage or additions to the existing Services of the same type and kind or are outside the scope of the Services.
means any Microsoft company.
means any information obtained by L3 Networks about Your employees and customers.
means any outside party that is not a direct employee of the Customer.
means the terms of payment defined on a Service Proposal.
means the date the payment is due after the invoice has been issued.
means any charge on an invoice You dispute in good faith.
“PC Power and Facilities”
means facilities and power costs as part of a Private Cloud Service.
“Private Cloud Services”
means Services provided to a Customer for use at an L3 Networks datacenter facility.
means a fixed term extension of the Service Proposal after expiry.
means the L3 Networks services identified in a specific Service Proposal.
“Service Coverage Option”
means the coverage times we will respond and perform Services for You it does not mean all Services are included with no additional charges during the defined Service Coverage Option period. You will need to reference Your SP and the SG to determine any additional costs for Service within defined Service Coverage Option time period.
means a list of Services in the SP to be provided to the customer.
means all types of fees payable under the applicable Service Proposal which may include Monthly Service Fees, One-Time Service Fees, Subscription Service Fees and any other types of fees listed in the SP.
“Service Fees Adujustments”
means the direct or indirect increase of fees for Material Changes, Third-Party Solutions, Surcharges, Taxes or PC Power and Facilities.
“Service Guide” or “SG”
means the document providing more details on the features of a particular Service specified in a Service Proposal.
“Service Proposal” or “SP”
means the document describing the Services Customer is purchasing, including any online order, process, API, statement of work, email, or other tool through which Customer requests or provisions Services and is a binding legal contract between L3 Networks and the Customer.
“SLA” or “Service Level Agreement”
means any provision providing a specified credit remedy for an identified failure to deliver or provide the Services to the identified standard.
means the initial term of the applicable Service Proposal.
“Termination for Convenience”
means an early termination event subject to the Termination Fee.
means a pre-negotiated liquidated damages payment.
“Termination Upon Expiration”
means termination of the Service Proposal at the end of the Service Term with proper Notice.
means software, licensing, subscriptions, telcom, carrier, voice, data, wireless or other solutions provided by others.