Revision: October 20, 2017
This Services Agreement (the “Agreement”) is between NocTel Communications, Inc. (“NocTel”), PO Box 35, Washougal, WA 98671, USA and the Customer shown at the end of this document and consists of (i) this document and (ii) the Customer’s Quotation of Services (see below). This Agreement may be executed by facsimile and/or in multiple counterparts. Once executed by both parties, this Agreement is effective as of the Effective Date shown below.
Definitions. As used in this Agreement, “Service” means the provision of bandwidth and voice services, as further defined in this Agreement and in the Quotation of Services (“Quote(s)”). “Network” means the network of routers, switches and communication channels that are owned or controlled by NocTel. The Quote is attached and marked as Exhibit A. Customer and NocTel may enter into subsequent Quote(s), which will automatically become part of this Agreement. “NocTel Equipment” means all computer equipment, software, networking hardware or other materials belonging to or furnished by NocTel. Additional terms are defined in the NocTel Terms and Conditions, below. NocTel will begin installation and Service only after it receives and accepts: (i) the Quote; (ii) this Agreement signed by a Customer authorized representative; and (iii) the Initial Payment due under Section 1.1 of this Agreement. “Personnel” refers to employees, representatives, agents, contractors, or subcontractors.
1. Service Fees And Billing. Customer agrees to pay the monthly charges for Service, the activation and other charges indicated on the Quote or otherwise due hereunder (collectively, “Service Charges”). Service Charges do not include applicable taxes, shipping charges (if any), or telephone company charges, all of which shall be billed in addition to the Service Charges (or billed by third party providers) and shall be the responsibility of the Customer.
1.1 Initial Payment. Upon NocTel’s acceptance of the Quote and full execution of this Agreement, Customer shall be invoiced for all Service Activation Charges and the first month’s Service Charges which shall be due upon installation, but in no event later than 30 days after the execution of this Agreement.
1.2 Recurring Charges. NocTel will bill Customer monthly in advance for the committed Services and monthly in arrears for any additional Services used above the committed Services billed in the prior month. Additional bandwidth above the committed amount will be billed in 0.1(tenth) Mbps increments. “Bandwidth Fees” is defined as charges for usage of bandwidth provided under this Agreement as set forth in the Quote. Billing for monthly Service Charges will begin on the Installation Date, which shall be thirty (30) business days after the Effective Date set forth above. If, however, Customer is unable to use the Services commencing on the Installation Date due solely to delays caused by and within the reasonable control of NocTel, then the date on which monthly Service Charges billing begins will be extended by one day for each such day of delay.
1.3 Payment. All Service Charges and other fees will be due in U.S. dollars within thirty (30) days of the date of invoice. Late payments will invalidate all service discounts provided and accrue interest at a rate of one and one-half percent (1 1⁄2%) per month or the highest rate allowed by applicable law, whichever is lower. If payment is returned to NocTel with insufficient funds, Customer is considered to not to have paid and subject to a returned check charge of $25 and may be terminated for Nonpayment as described in 8.1.
1.4 Bandwidth Measurement. Bandwidth usage will be calculated by NocTel using the 95th percentile of samplings taken at 5 minute intervals on a monthly basis. Samples are taken by NocTel via SNMP from the NocTel switch or router port Customer is directly connected to and are the greater of input or output bits per second. 95th percentile is determined by sorting the sample data from smallest to largest and discarding the top 5 percent, with the remaining largest sample designated as the 95th percentile.
2.1 Terms of Service. Customer will at all times comply with and conform its use of the Service to the NocTel Terms of Service (set forth at NocTel’s website), as updated from time to time. In the event Customer violates NocTel’s Acceptable Use Guidelines, NocTel shall have the right to immediately suspend Service. NocTel will provide notice and opportunity to cure, if and to the extent NocTel deems practicable, depending on the nature of the violation and availability of the Customer. NocTel, in its reasonable discretion, may re-enable the Service upon satisfaction that all violations have ceased and with adequate assurance that such violations will not occur in the future.
2.2 Updates. NocTel may update the NocTel Terms of from time to time by posting such updates on NocTel’s website. References herein to the NocTel Terms of Service shall mean the most updated version of such policies or procedures posted on NocTel’s web site. NocTel shall notify Customer of any material changes to its policies and procedures.
2.3 Prohibited Uses. Customer shall not do or allow any use which in the opinion of NocTel causes or is likely to cause damage or constitutes a nuisance or annoyance to the facility, equipment, personnel, or other customers.
2.4 Illegal Use. Customer will cooperate in any investigation of Customer’s alleged illegal use of NocTel’s facilities or other networks accessed through NocTel. If Customer fails to cooperate with any such investigation, NocTel may suspend Customer’s Service.
2.5 Address Space. NocTel will assign IP addresses to Customer based upon ARIN guidelines. Addresses assigned to Customer by NocTel may only be used while a NocTel customer. If Customer has a valid address allocation from ARIN, RIPE, or APNIC, Customer may request NocTel to announce it via BGP at no additional charge.
3. NO WARRANTY. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, AND CUSTOMER’S USE OF THE SERVICES ARE AT CUSTOMER’S OWN RISK. NOCTEL DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NOCTEL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
4. Disclaimer of Third Party Actions and Control. NocTel does not and cannot control the flow of data to or from the Network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions caused by these third parties can produce situations in which Customer connections to the Internet (or portions thereof) may be impaired or disrupted. NocTel cannot guarantee that such situations will not occur and, accordingly, NocTel disclaims any and all liability resulting from or related to such events. In the event that Customer's use of the Service or interaction with the Internet or such third parties is causing harm to or threatens to cause harm to the Network or its operations, NocTel shall have the right to suspend the Service. NocTel shall restore Service at such time as it reasonably deems that there is no further harm or threat of harm to the Network or its operations.
5. Limitations of Liability.
5.1 Personal Injury. NocTel will not be liable for any harm or personal injury to Customer personnel or customers resulting from any cause, other than NocTel’s gross negligence or willful misconduct.
5.2 Damage to Customer Equipment. NocTel is not liable for damage to, or loss of any of Customer Equipment resulting from any cause, other than NocTel’s gross negligence or willful misconduct and then only in an amount not to exceed the replacement value of the damaged Customer Equipment, or the total amount paid by Customer to NocTel for one month’s service, whichever is lower.
5.3 Damage to Customer Business. In no event will NocTel be liable for any incidental, punitive, indirect, or consequential damages (including without limitation any lost revenue or lost profits) or for any loss of technology, loss of data, or interruption or loss of use of Service or any other similar claims by Customer or related to Customer’s business, even if NocTel is advised of the possibility of such damages. NocTel will not be liable for any damages or expenses incurred by Customer as a result of any deficiency, error, or defect in NocTel’s service whether due to equipment, hardware, software, or NocTel’s failure to correct the same.
5.4 Maximum Liability. Notwithstanding anything to the contrary in this Agreement, NocTel’s maximum aggregate liability to Customer related to or in connection with this Agreement whether under theory of contract, tort (including negligence), strict liability or otherwise will be limited to the total amount paid by Customer to NocTel for one month’s service.
6. Indemnification.
6.1 Indemnification. Both parties hereby agree to indemnify, defend, and hold harmless each other from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) incurred by either party in connection with any actual or alleged claim arising out of, or relating to: (i) material breach of this Agreement; (ii) negligence, fraudulent misrepresentation, or willful misconduct; (iii) misuse of the Services; (iv) use of any documents, work product or other materials developed or otherwise created by you using the Services, including without limitation, any such documents’, work product’s or other materials’ infringement or misappropriation of any third-party intellectual property rights; (v) NocTel’s use of any specifications or requirements you provide; or (vi) any actual or alleged violation or non-compliance by either party with any applicable law, rule, or regulation.
6.2 Notice Procedure. NocTel will provide Customer with prompt written notice of each Customer Covered Claim of which NocTel becomes aware, and, at NocTel’s sole option, NocTel may elect to participate in the defense and settlement of any Customer Covered Claim, provided that such participation shall not relieve Customer of any of its obligations under this Section 6. Customer shall have the right to control the defense of any Customer Covered Claim. Customer will provide NocTel with prompt written notice of each NocTel Covered Claim of which Customer becomes aware, and at Customer’s sole option, Customer may elect to participate in the defense and settlement of NocTel Covered Claim, provided that such participation shall not relieve NocTel of any of its obligations under this Section 6. NocTel shall control the defense of any NocTel Covered Claim.
7. Term. This Agreement will commence on the Effective Date and shall expire at the end of the last “Term” specified in any Quote, unless sooner terminated as provided in Section 8 below, provided, however, that each Quote shall automatically renew for additional periods of the same length as the initial Term upon the end of its Term unless one party provides the other written notice that it is terminating such Quote not more than 90 days and not less than 30 days prior to the end of the Term specified in the Quote.
8. Termination.
8.1 Nonpayment. NocTel may suspend Service to Customer if any amount due hereunder is not paid in full within fifteen (15) days after Customer is sent an overdue notice. To reinstate Service, NocTel will require a reconnection fee of $1,000.00. NocTel may terminate this Agreement (or at its option, only the relevant Quote) if any amount due hereunder is not paid in full within thirty (30) days after Customer is sent an overdue notice.
8.2 Bankruptcy. NocTel may terminate this Agreement upon written notice to Customer if Customer becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors, if such petition or proceeding is not dismissed within 60 days of filing.
8.3 Unacceptable Use. NocTel may immediately terminate this Agreement if Customer violates any provision of the NocTel Terms of Service that results or could result in suspension by NocTel.
8.4 For Other Cause. Except as otherwise stated, either party may terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of the same.
8.5 Effect of Termination. Upon expiration or termination of this Agreement: (a) NocTel will cease providing the Services; (b) except in the case of termination by Customer pursuant to Section 8.4, all of Customer payment obligations under this Agreement, including but not limited to monthly Service Fees through the end of the Term indicated on the Quote(s) will become due in full immediately; and (c) within ten (10) days, Customer will remove all of Customer Equipment and any other property from NocTel. If Customer does not remove such property within the ten (10) day period, NocTel, at its option and at Customer expense, may remove and store any and all such property, return such Equipment to the Customer, or dispose of such equipment without liability for any related damages. In addition,
NocTel reserves the right to hold any Customer Equipment until it has received payment in full.
9. Survival. The Parties’ respective representations, warranties, and covenants, together with obligations of indemnification, confidentiality and limitations on liability will survive the expiration, termination or rescission of this Agreement and continue in full force and effect.
10.Miscellaneous Provisions.
10.1 Force Majeure. Other than with respect to failure to make payments due hereunder, neither party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control.
10.2 Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
10.3 Assignment. Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, except to an affiliate or a party that acquires substantially all of the assigning party’s assets or a majority of its stock as part of a corporate merger or acquisition. Any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
10.4 Notices. Any required notice hereunder may be delivered personally or by courier; sent by confirmed facsimile; or mailed by registered or certified mail, return receipt requested, postage prepaid, to either party at the name and address on the signature page of this Agreement, or at such other address as such party may provide to the other by written notice. Such notice will be deemed to have been given as of the date it is delivered personally or by courier, or five (5) days after it is sent by confirmed facsimile or mailed.
10.5 Relationship of Parties. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
10.6 Changes Prior to Execution. Customer represents and warrants that any changes to this Agreement made by it were properly marked as changes and that Customer made no changes to the Agreement that were not properly identified as changes.
10.7 Choice of Law. This Agreement will be governed by and construed in accordance with the laws of the State of Washington, excluding its conflict of laws principles.
11.General. This Agreement, together with the Quote(s) and NocTel policies referred to in this Agreement is the complete agreement and understanding of the parties with respect to the subject matter hereof, and supersedes any other agreement or understanding, written or oral. This Agreement may be modified only through a written instrument signed by both parties. Should any provision of this Agreement be declared void or unenforceable, such provision will be deemed amended to achieve as nearly as possible the same economic effect as the original terms and the remainder of this Agreement will remain in full force and effect.