Service Contract
RESIDENTIAL SERVICE AGREEMENT
This Master Service Agreement (this "Agreement") is entered into this {date} (“Effective Date”) by and between Upper Peninsula Telephone Company, a Michigan corporation doing business as Michigan Broadband Services (“MBBS”) with its principal office located at 397 US 41 N Carney MI 49812, on behalf of itself and {name} (“Customer”). Customer desires to purchase, and MBBS desires to supply, communications services under the following terms and conditions.
ARTICLE 1. DELIVERY OF SERVICE
1.1 Submission of Customer Order(s). To order any Service, Customer may submit a Customer Order requesting Service. The Customer Order and its backup detail must include a description of the Service, the non-recurring charges and monthly recurring charges for Service, the requested Service Commencement Date, and the applicable Service Term.
1.2 Acceptance by MBBS. Upon receipt of a Customer Order, if MBBS determines (in its sole discretion) to accept the Customer Order, MBBS will notify Customer in person, by email, or in writing of its acceptance of the Customer Order and/or Service Order. MBBS will become obligated to deliver ordered Service only if MBBS has accepted the Customer Order and/or Service Order.
1.3 Credit Approval and Deposits. Customer will provide MBBS with credit information as requested, and delivery of Service is subject to credit approval. MBBS may require Customer to make a deposit or deliver another form of security as a condition to MBBS’s acceptance of any Customer Order, or as a condition to MBBS’s continuation of Service. The deposit will be held by MBBS as security for payment of Customer's charges. When Service to Customer is terminated, the amount of the deposit will be credited to Customer's account and any remaining credit balance will be refunded. Any deposit paid by Customer pursuant to this Section 2.3 will be held by MBBS in accordance with the applicable law governing such deposit.
1.4 Customer Premises. Customer shall allow MBBS access to the Customer Premises to the extent reasonably determined by MBBS for the installation, inspection and scheduled or emergency maintenance of Facilities relating to the Service. MBBS shall notify Customer at least two (2) business days in advance of any Planned Service Outage that will require access to the Customer Premises or that may result in a material interruption of Service. Customer will be responsible for providing and maintaining, at its own expense, the level of power, heating and air conditioning necessary to maintain the proper environment for the Facilities on the Customer Premises. In the event Customer fails to do so, Customer shall reimburse MBBS for the actual and reasonable cost of repairing or replacing any Facilities damaged or destroyed as a result of Customer's failure. Customer will provide a safe place to work and comply with all laws and regulations regarding the working conditions on the Customer Premises.
1.5 MBBS Facilities. Except as otherwise agreed, title to all Facilities shall remain with MBBS. MBBS will provide and maintain the Facilities in good working order. Customer shall not, and shall not permit others to, rearrange, disconnect, remove, attempt to repair, or otherwise tamper with any Facilities, without the prior written consent of MBBS. The Facilities shall not be used for any purpose other than that for which MBBS provides them. Customer shall not take any action that causes the imposition of any lien or encumbrance on the Facilities. In no event will MBBS be liable to Customer or any other person for interruption of Service or for any other loss, cost or damage caused by or related to improper use or maintenance of the Facilities by Customer or any third-party gaining access to the Facilities by Customer in violation of this Agreement, and Customer shall reimburse MBBS for any damages incurred as a result thereof. Customer agrees (which agreement shall survive the expiration, termination, or cancellation of any Customer Order) to allow MBBS to remove the Facilities from the Customer Premises:
(A) after termination, expiration or cancellation of the Service Term of any Service in connection with which the Facilities were used; or
(B) for repair, replacement or otherwise as MBBS may determine is necessary or desirable, but MBBS will use reasonable efforts to minimize disruptions to the Service caused thereby.
1.6 Customer-Provided Equipment. MBBS may install certain Customer-provided communications equipment upon installation of Service, but MBBS shall not be responsible for the operation or maintenance of any Customer-provided communication equipment. MBBS undertakes no obligations and accepts no liability for the configuration, management, performance, or any other issue relating to Customer’s routers or other Customer-provided equipment used for access to or the exchange of traffic in connection with the Service.
ARTICLE 2. BILLING AND PAYMENT
2.1 Commencement of Billing. Upon installation and testing of the Service ordered in any Customer Order, MBBS will deliver to Customer a Connection Notice. Upon receipt of the Connection Notice, Customer shall have a period of seventy-two (72) hours to confirm that the Service has been installed and is properly functioning. Unless Customer delivers written notice to MBBS within such seventy-two (72) hour period that the Service is not installed in accordance with the Customer Order and is not functioning properly, billing shall commence on the applicable Service Commencement Date, regardless of whether Customer has procured services from other carriers needed to operate the Service, and regardless of whether Customer is otherwise prepared to accept delivery of ordered Service. In the event that Customer notifies MBBS within the time period stated above that the Service is not installed and functioning properly, then MBBS shall correct any deficiencies in the Service and deliver a new Connection Notice to Customer, after which the process stated herein shall be repeated.
2.2 Charges. The Customer Order will set forth the applicable non-recurring charges and recurring charges for the Service. Unless otherwise expressly specified in the Customer Order, any non-recurring charges shall be invoiced by MBBS to Customer upon the Service Commencement Date.
2.3 Payment of Invoices. Monthly recurring and all one-time charges shall be invoiced thirty (30) days in advance of service (the 1st of month for current month) and all usage charges shall be invoiced in arrears (the 1st of month for preceding month). Customer agrees to make all undisputed payments for Services within twenty-five (25) days of the invoice date (the “Due Date”). For any undisputed amounts not paid within twenty-five (25) days of the invoice date, MBBS may assess a late fee.
2.4 Taxes and Fees. All charges for Service are net of Applicable Taxes (as defined below). Except for taxes based on MBBS's net income, Customer will be responsible for and agrees to pay all applicable taxes that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges, however designated, imposed on, incident to, or based upon the provision, sale or use of the Service (collectively “Applicable Taxes”). If Customer is entitled to an exemption from any Applicable Taxes, Customer is responsible for presenting MBBS with a valid exemption certificate (in a form reasonably acceptable to MBBS). MBBS will give effect to any valid exemption certificate provided in accordance with the foregoing sentence to the extent it applies to any Service billed by MBBS to Customer only for the period following MBBS’s receipt of such exemption certificate.
2.5 Regulatory and Legal Changes. In the event of any change in applicable law, regulation, decision, rule or order that materially increases the costs or other terms of delivery of Service, MBBS and Customer will negotiate regarding the rates to be charged to Customer to reflect such increase in cost and, in the event that the parties are unable to reach agreement respecting new rates within thirty (30) days after MBBS’s delivery of written notice requesting renegotiation, then (a) MBBS may pass such increased costs through to Customer, and (b) if MBBS elects to pass such increased costs through to Customer, Customer may terminate the affected Service without termination liability by delivering written notice of termination no later than thirty (30) days after the effective date of the rate increase.
2.6 Disputed Invoices. If Customer reasonably disputes any portion of a MBBS invoice, Customer must pay the undisputed portion of the invoice and submit written notice of the claim (in a form reasonably requested by MBBS) for the disputed amount. All claims must be submitted to MBBS in writing within sixty (60) days from the date of the invoice for those Services. Customer waives the right to dispute any charges not disputed within such sixty (60) day period. In the event that the dispute is resolved against Customer, Customer shall pay such amounts plus late fees.
2.7 Termination Charges.
(A) Customer may cancel a Customer Order prior to the acceptance of an Order by MBBS without liability or charges by providing written notice of such cancellation to MBBS seventy-two (72) hours prior to the scheduled installation date.
(B) Customer may cancel a Customer Order within seventy-two (72) hours that may be subject to one (1) month’s monthly recurring charges for the cancelled Service. Or the percentage of the monthly recurring charges for the terminated Service calculated from the effective date of termination as follows: (a) 100% of the remaining monthly recurring charges that would have been incurred for the Service for months 1-12 of the Service Term, plus (b) 50% of the remaining monthly recurring charges that would have been incurred for the Service for months 13 through the end of the Service Term.
(C) The parties acknowledge that the cancellation or termination charges set forth in this Section 2.7 are a genuine estimate of the actual damages that MBBS will suffer and are not a penalty.
2.8 Fraudulent Use of Services. Customer is responsible for all charges attributable to Customer incurred related to Service, even if incurred as the result of fraudulent or unauthorized use of Service; except Customer shall not be responsible for fraudulent or unauthorized use by MBBS or its employees.
ARTICLE 4. TERM AND TERMINATION
3.1 Term.
(A) This Agreement shall become effective on the Effective Date and shall continue for a period of two (2) years thereafter (“Initial Term”), unless earlier terminated as provided herein. At the end of the Initial Term, the Agreement shall automatically renew for a period of one-year (“Renewal Term”) at month-to-month rates unless terminated by either party upon thirty (30) days prior written notice to the other party.
(B) Except as otherwise set forth herein, MBBS shall deliver the Service for the entire duration of the Service Term, and Customer shall pay all charges for delivery thereof through the end of the Service Term. To the extent that the Service Term for any Service extends beyond the Initial Term or any Renewal Term, then this Agreement shall remain in full force and effect for such Service until the expiration or termination of such Service Term.
3.2 Default By Customer. If (i) Customer makes a general assignment for the benefit of its creditors, files a voluntary petition in bankruptcy or any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution, or similar relief; (ii) an involuntary petition in bankruptcy or other insolvency protection against Customer is filed and not dismissed within sixty(60) days; (iii) Customer fails to make any payment required hereunder when due, and such failure continues for a period of three (3) business days after written notice from MBBS, (iv) Customer fails to observe and perform any material term of this Agreement (other than payment terms) and such failure continues for a period of thirty (30) days after written notice from MBBS; or (v) Customer's use of Service materially exceeds Customer's credit limit, unless within one (1) business day’s written notice thereof by MBBS, Customer provides adequate security for payment for Service; (vi) fraud or other misrepresentation in any submission or information to MBBS by Customer; or (vii) violation of the Acceptable Use policy as set forth in Section 6.5; then MBBS may: (A) terminate this Agreement and any Customer Order, in whole or in part, in which event MBBS shall have no further duties or obligations thereunder, and/or (B) subject to Section 4.1, pursue any remedies MBBS may have under this Agreement, at law or in equity.
3.3 Default By MBBS. If (i) MBBS makes a general assignment for the benefit of its creditors, files a voluntary petition in bankruptcy or any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution, or similar relief; (ii) an involuntary petition in bankruptcy or other insolvency protection against MBBS is filed and not dismissed within sixty (60) days; or (iii) MBBS fails to observe and perform any material term of this Agreement (other than as provided in Article 6) and such failure continues for a period of thirty (30) days after written notice from Customer; then Customer may: (A) terminate this Agreement and/or any Customer Order, in whole or in part, in which event Customer shall have no further liabilities, duties or obligations thereunder, and/or (B) subject to Section 4.1, pursue any remedies Customer may have under this Agreement, at law or in equity.
ARTICLE 4. LIABILITIES AND INDEMNIFICATION
4.1 No Special Damages. Notwithstanding any other provision hereof (other than Section 5.3), neither party shall be liable for any indirect, incidental, special, consequential, exemplary, or punitive damages (including, without limitation, damages for lost profits, lost revenues, or the cost of purchasing replacement services) arising out of the performance or failure to perform under this Agreement or any Customer Order. Nothing in this Agreement shall be construed as limiting the liability of either party for personal injury or death resulting from the negligence of a party or its employees.
4.2 Disclaimer of Warranties; Limitation of Liability. MBBS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.
4.3 Indemnification. Each party shall indemnify the other from any claims by third parties and expenses (including legal fees and court costs) respecting damage to tangible property, personal injury or death caused by such party’s negligence or willful misconduct.
ARTICLE 6. SERVICE LEVELS
5.1 Service Interruptions and Delivery. To report issues related to Service performance including degradation or interruption of Service, Customer shall contact MBBS Network Operation Center by calling toll free 1-855-642-4227 in the U.S or such other numbers for MBBS Customer Service, twenty-four (24) hours per day, seven (7) days per week. In order for MBBS to investigate any reported issues, Customer agrees to provide MBBS with supporting information as reasonably requested by MBBS, which may include (as applicable), without limitation, circuit ID, circuit end point(s), IP address(es), originating phone number and terminating phone number.
5.2 Maintenance. MBBS may from time to time suspend Service for routine maintenance or rearrangement (“Planned Service Outage”) as set forth in the Service Level Agreement. MBBS will give Customer advance notice of such Planned Service Outages.
ARTICLE 7. GENERAL TERMS
6.1 Force Majeure. Neither party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such party’s reasonable control (“Force Majeure Event”). In the event MBBS is unable to deliver Service as a result of a Force Majeure Event, Customer shall not be obligated to pay MBBS for the affected Service for so long as MBBS is unable to deliver the affected Service.
6.2 Assignment. Customer may not assign its rights and obligations under this Agreement or any Customer Order without the express prior written consent of MBBS, which will not be unreasonably withheld. This Agreement shall apply to any permitted transferees or assignees. Notwithstanding any assignment by Customer, Customer shall remain liable for the payment of all charges due under each Customer.
IF TO MBBS:
For billing inquiries/disputes, requests for disconnection of Service (for other than default):
MICHIGAN BROADBAND SERVICES
P.O. BOX 86 397 US 41 N
Carney, Michigan 49812
Attn: Phil Truran
Email: customercare@michbbs.com
IF TO CUSTOMER:
Name: ___________________________
Email: ____________________________
6.3 Use of Services.
(A) Prohibited Uses.
(i) Resale. Customer may not sell, resell, sublease, assign, license, sublicense, share, provide, or otherwise utilize in conjunction with a third party (including, without limitation, in any joint venture or as part of any outsourcing activity) the Services or any component thereof without express written consent from MBBS, which may be withheld in MBBS’s sole discretion.
(ii) Use of Services in Violation of Law. In general, MBBS prohibits use of the Services for any activity that violates federal, state, local, or international law.
(iii) Use of Services in Violation of Acceptable Use Policy. Customer's use of Service shall always comply with MBBS's then-current Acceptable Use Policy and Privacy Policy, as amended by MBBS and communicated in writing to Customer from time to time and which are also available through MBBS's web site at www.MBBScommunications.com. MBBS will notify Customer of complaints received by MBBS regarding each incident of alleged violation of MBBS's Acceptable Use Policy by Customer or third parties that have gained access to the Service through Customer. Customer agrees that it will promptly investigate all such complaints and take all necessary actions to remedy any actual violations of MBBS's Acceptable Use Policy. MBBS may identify to the complainant that Customer, or a third party that gained access to the Service through Customer, is investigating the complaint and may provide the complainant with the necessary information to contact Customer directly to resolve the complaint. Customer shall identify a representative for the purposes of receiving such communications.
6.4 Data Protection. During the performance of this Agreement, it may be necessary for MBBS to transfer, process and store billing and utilization data and other data necessary for MBBS’s operation of its network and for the performance of its obligations under this Agreement. The transfer, processing and storing of such data may be to or from the United States. Customer hereby consents that MBBS may (i) transfer, store and process such data in the United States; and (ii) use such data for its own internal purposes and as allowed by law. This data will not be disclosed to third parties.
6.5 Disclosure of Customer Information. Neither party may place content on a public website or release a media notice, press release, or any other sales, promotion, or collateral material (“Press Release”) for external use that uses the other party’s name, service mark, or trademark without specific, per issuance prior written approval from the other party.
6.6 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Michigan, U.S.A., without regard to its choice of law rules.
6.7 Entire Agreement. This Agreement, including any and Customer Order(s) executed hereunder, constitutes the entire and final agreement and understanding between the parties with respect to the Service and supersedes all prior agreements relating to the Service, which are of no further force or effect. This Agreement is not exclusive to either Party.
6.8 Amendment. This Agreement, and Customer Order, may only be modified or supplemented by an instrument in writing executed by a duly authorized representative of each party. Without limiting the generality of the foregoing, any handwritten changes to a Customer Order shall be void unless acknowledged and approved in writing by a duly authorized representative of each party.
6.9 Policy Changes. MBBS will provide the Customer with ten (10) days written prior notice of any and all changes in policy and technical issues that might affect Customer’s compliance with this Agreement.
6.10 Order of Precedence. In the event of any conflict between this Agreement and the terms and conditions of any Service Schedule and/or Customer Order, the order of precedence is as follows: (1) this Agreement, and (2) the Customer Order.
6.11 Survival. The provisions of this Article 7 and Articles 3, 5 and 6 and any other provisions of this Agreement that by their nature are meant to survive the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.
6.12 Relationship of the Parties. The relationship between Customer and MBBS shall not be that of partners, agents, or joint venturers for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency agreement between them for any purposes, including, without limitation, for federal income tax purposes.
6.13 No Waiver. No failure by either party to enforce any right(s) hereunder shall constitute a waiver of such right(s).
6.14 Severability. If any provision of this Agreement shall be declared invalid or unenforceable under applicable law, said provision shall be ineffective only to the extent of such declaration and shall not affect the remaining provisions of this Agreement. In the event that a material and fundamental provision of this Agreement is declared invalid or unenforceable under applicable law, the parties shall negotiate in good faith respecting an amendment hereto that would preserve, to the fullest extent possible, the respective benefits and burdens imposed on each party under this Agreement as originally executed.
6.15 Joint Product. The parties acknowledge that this Agreement is the joint work product of the parties. Accordingly, in the event of ambiguities in this Agreement, no inferences shall be drawn against either party on the basis of authorship of this Agreement.
6.16 Third Party Beneficiaries. This Agreement shall be binding upon, inure solely to the benefit of and be enforceable by each party hereto and their respective successors and assigns hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any thirty party any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
6.17 Attorney’s Fees. In the event a party takes action to enforce any of the terms of this Agreement, the prevailing party shall be awarded its costs, litigation expenses and reasonable attorney's fees.
6.18 Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the Effective Date written above. The individuals executing this Agreement on behalf of each party hereby represent and warrant to the other party that such individual is authorized to so execute this Agreement
UPPER PENINSULA TELEPHONE COMPANY
(“MBBS”)
Name: Phil Truran
Signature: Phil Truran
Title: President
Date: {date}
CUSTOMER
Name: {name}
Signature:
Date: {date}