Data Services Agreement (“Agreement”) is entered into by and between PacNet, LLC (“PacNet”) and end user (“Customer”) for PacNet’s provision of the Service and Customer’s payment therefore, all as described herein.
1.1 “Customer Facilities” means all necessary facilities, services, equipment and software used in connection with PacNet’s provision of the Service except those items specifically listed in the Data Services Order Form as being provided by PacNet.
1.2 “Data Services Order Form” means each request for Service set forth in PacNet’s Data Services Order Form attached to, and/or referencing, this Agreement and incorporated herein by reference, including any modifications to such Service as permitted in this Agreement.
1.3 “Interruption in Service” means a loss of communications.
1.4 “Non-Recurring Charges” means one-time charges for types of Service such as installation Service and order expedites.
1.5 “Node(s)” means each individual physical location, by address, at which the Customer receives the Service.
1.6 “Requested Service Date” means the date Customer requests Service to begin as set forth in a Data Services Order Form.
1.7 “Service” means the services described and requested in each Data Services Order Form.
1.8 “Service Charge” means the monthly charge for the Service calculated at the rate set forth in the Data Services Order Form, plus such additional charges as referenced in Section 5. Service Charges for partial months shall be pro-rated.
1.9 “Start of Service Date” means the date upon which PacNet’s provision of Service under a Data Services Order Form becomes effective as set forth in Section 3.
2.1 Upon the terms and subject to the conditions contained in this Agreement, PacNet will provide Customer with the types of Service for the certain time period set forth in each Data Services Order Form.
3. COMMENCEMENT AND TERM OF SERVICE
3.1 This Agreement shall become effective as of the date set forth in the introductory paragraph above and remain in effect so long as a Data Services Order Form is in effect, unless terminated earlier in accordance with this Agreement. Each Data Services Order Form shall become effective on the Requested Service Date or the date PacNet is ready to provide the Service under a Data Services Order Form (whether or not Customer has fulfilled its obligations hereunder, including provisioning of the Customer Facilities), whichever is later, and shall continue in effect for the certain period of time set forth in the Services Order Form, including any renewals thereto (collectively, the “Service Commitment Period”), unless earlier terminated in accordance with this Agreement. PacNet shall use reasonable efforts to make Service available by the Requested Service Date.
4.1 Except as otherwise set forth in this Agreement, Service Charges shall be set forth on the applicable Service Order and/or any pricing attachment (“Pricing Attachment”). Customer may pre-pay Service Charges for each term set forth on the Service Order, or Customer may pay Service Charges on a monthly basis. For customers paying monthly, Service Charges shall be invoiced monthly in advance and payment is due upon receipt of such invoice, with the first month’s charges due upon execution of this Agreement or any subsequent Service Order under this Agreement. The first such payment shall be for the period from the Start of Service Date through the end of the month immediately following the month in which the Start of Service Date occurs, with payment for any partial first month to be pro-rated. Customer shall pay all Non-Recurring Charges (as such charges are set forth on the Data Services Order Form) with such first payment. All other charges hereunder shall be due and payable by Customer to PacNet within thirty (30) days of the invoice date. Customer shall pay all amounts when due without deduction, credit or offset of any kind.
4.2 PacNet may, at its option, increase the Service Charge to reflect any increases in the local exchange tariff charged to PacNet.
4.3 Customer has sole responsibility for installation, testing and operation of Customer Facilities and use of the Service. In no event will the untimely installation or the non-operation of Customer Facilities relieve Customer of its obligations to pay PacNet the charges for Service commencing on the Start of Service Date and continuing throughout the Service Commitment Period.
4.4 Customer shall pay PacNet a late payment charge for failure to pay any amount hereunder in full by the due date. The late payment charge will be calculated based on the past due balance at a periodic monthly rate of one and one-half percent or the maximum rate permitted by law, whichever is less.
5. ADDITIONAL CHARGES
5.1 In addition to all other charges provided under this Agreement, Customer shall pay any use or sales taxes, duties or similar charges levied or assessed upon or against PacNet because of the Service furnished by PacNet.
6. ASSURANCE OF PAYMENT
6.1 Customer authorizes PacNet to obtain information concerning Customer from any source, including Customer’s prior or current financial institutions, telecommunications providers and trade suppliers and to release such information to third parties. PacNet may, at its option, require Customer to make a deposit or other assurance of payment to secure payment of the Service Charge and other charges hereunder. Upon expiration or cancellation of this Agreement, PacNet shall apply the deposit to any amounts remaining due under this Agreement and refund the remainder, if any, to the Customer.
7. DISPUTED AMOUNT(S)
7.1 If Customer identifies any charges billed in error, Customer may dispute such charges (a “Disputed Amount”). Customer must submit a good faith claim regarding the Disputed Amount with documentation as may reasonably be required to support the claim within one hundred and twenty (120) days of receipt of the initial invoice sent by VENDOR regarding the Disputed Amount. Payment does not prejudice Customer right to dispute. If Customer does not submit a documented claim within one hundred and twenty (120) days of receipt of the initial invoice sent by PacNet regarding such Disputed Amount, Customer waives all rights to dispute such Disputed Amount.
8. SUSPENSION OF SERVICE
8.1 In the event payment of any charge authorized under this Agreement is not made in full by Customer by the due date, PacNet shall have the right, after giving Customer ten (10) days’ notice, to suspend Service to Customer until such time as Customer has paid a reconnection charge as established by PacNet and all outstanding charges, including any late payment charge. In addition to or in lieu of suspending Service, PacNet may, in its sole discretion, require Customer to make a deposit, an additional deposit or other assurance of payment to secure future payments.
8.2 In the event PacNet, in its sole discretion, determines that there has been a material change in Customer’s creditworthiness, PacNet may, upon ten (10) days’ notice, require Customer to make a deposit, an additional deposit, or other reasonable assurance of payment and shall suspend Service until such time as Customer has made such deposit, additional deposit or other reasonable assurance of payment. A material change in credit-worthiness includes, but is not limited to, the following: (a) failure of Customer to make full payment of charges due under this Agreement on or before thirty (30) days from the due date on three or more occasions during any period of twelve or fewer months, or Customer’s failure to make such payments on or before thirty (30) days from the due date in any two consecutive months; and/or (b) acquisition of Customer by an entity which is insolvent, subject to bankruptcy or insolvency proceedings or which, in PacNet’s commercially reasonable discretion, is a greater credit risk than Customer. The remedies set forth in this Subsection 7.2 shall not be exclusive and PacNet shall at all times be entitled to all rights available to it under law or in equity.
9. SYSTEM MAINTENANCE
9.1 In the event that maintenance of PacNet’s facilities should require an Interruption in Service, to the extent practicable it shall be carried out only after notice is provided to the Customer.
10. AUTOMATIC RENEWAL
10.1 At the expiration of the initial period of time Service is to be provided as specified in each Data Services Order Form, or of any extension thereof, this Agreement and the particular Data Services Order Form shall continue in effect on a month-to-month basis at the then current monthly rate unless terminated by either party upon thirty (30) days prior written notice.
11.1 All notices, requests, demands or other communications provided for or permitted or required by this Agreement shall be deemed delivered (a) on the same day if hand delivered, (b) by the next business day if sent by overnight courier or by facsimile, or (c) within three (3) days if sent by United States mail. Such communications shall be directed to the parties at the following addresses unless otherwise changed by written notice:
Office of PacNet shall be:
15801 NE 85th Street
Redmond, WA 98052
12.1 Customer may cancel this Agreement upon thirty (30) days advance written notice to PacNet and payment of all charges then due or to become due prior to the effective date of cancellation (including the Cancellation Charge described in Section 11.4 below).
12.2 If Customer fails to comply with any provision of this Agreement, PacNet may, in addition to all other remedies available, cancel this Agreement upon thirty (30) days prior written notice to Customer.
12.3 This Agreement shall be canceled without further notice if Customer ceases to carry on its present business or becomes insolvent, makes a general assignment for the benefit of creditors, or is involved as a debtor in any proceeding seeking the liquidation, reorganization or other relief (such as appointment of a trustee, receiver, custodian or other similar official) of Customer under any bankruptcy, insolvency or other similar law. In the event this Agreement remains in effect after the initiation of a bankruptcy or other federal insolvency proceeding, Customer agrees to assume or reject this Agreement within thirty (30) days after the filing of an order for relief.
12.4 Upon cancellation for any reason, Customer agrees to immediately pay to PacNet all charges then due (including any Cancellation Charge outlined below). Customer further agrees that it shall be difficult or impossible to ascertain the damage to PacNet in the event this Agreement is canceled. Customer therefore agrees that if cancellation is due to reasons other than a material breach of this Agreement by PacNet, Customer shall, in addition to all other charges then due, pay to PacNet a Cancellation Charge (as hereinafter defined). Such “Cancellation Charge” is intended as a liquidated damage and not a penalty and shall be calculated as follows: If such cancellation occurs within the term of the provision of Service under a Data Services Order Form, then the Cancellation Charge shall be the full amount (100%) of the remaining term of the Data Services Order Form(s) so canceled, plus the difference between any promotions, discounts or waivers received. All Cancellation Charges shall be due and payable within thirty (30) days of the effective date of cancellation.
12.5 Either party shall have the right to cancel this Agreement if PacNet is prohibited from furnishing the Service for any reason or if any material rate or term contained in this Agreement is substantially changed by order of the Federal Communications Commission (FCC), or other local, state or federal governmental authority or court of competent jurisdiction. In the event of termination under this provision, Customer shall not be liable for the Cancellation Charge, but shall, upon termination, immediately pay all other charges then due.
13. NODE CHANGES
13.1 Customer agrees to provide PacNet with thirty (30) days’ prior written notice before adding Nodes, deleting Nodes, or otherwise modifying the physical location of any existing Nodes. PacNet will use commercially reasonable efforts to meet Customer requests for additional Nodes, with such additional Nodes to constitute additional Service which shall be set forth on a Data Services Order Form. Charges for additional Nodes and/or for moving the physical location of a Node shall be paid by Customer in accordance with the terms of this Agreement. Deletion of a Node, or the modification of the physical location of a Node, will constitute a cancellation of such Node and the corresponding Service associated with such Node and will be subject to a Cancellation Charge as described in Section 11.4. Notwithstanding the foregoing, if Customer changes the physical location of a Node to another physical location but retains or increases the overall number of Nodes in its network, then PacNet will reasonably consider the individual circumstances involved when addressing pricing impacts and any Cancellation Charge.
14. LIMITATION OF LIABILITY
14.1 The obligations and liabilities of PacNet and the rights, claims, and remedies of Customer specifically set forth in this Agreement are exclusive and in lieu of all others.
14.2 Customer hereby releases PacNet from all other obligations and liabilities and waives (to the extent permitted by law) all other rights, claims, and remedies against PacNet and its officers, directors, employees, representatives, affiliates, successors and assigns, arising by law or otherwise, with respect to any services and/or products provided under or related to this agreement.
14.3 PacNet’s aggregate liability for claims or direct damages arising under or in connection with this agreement, or the performance of its obligations hereunder, or from any breach or partial breach of the provisions of this agreement or arising out of any acts or omissions of PacNet, its employees, servants or agents, including any claim for bodily injury or damage to real or personal property, shall not exceed the monthly service charge set forth in the applicable data service order form subject of the liability for the month in which the acts giving rise to the claim occurred. Customer agrees that under no circumstances shall PacNet be liable to customer or any other person, firm, or entity for any indirect, incidental, special, consequential, punitive or reliance damages or any other damages of any kind whatsoever (including, but not limited to, any claim for loss of service, lost profits or lost revenues) arising from or relating to this agreement, whether based upon a claim or action for breach of contract, breach of warranty, negligence, indemnity or contribution, or any other theory of liability, even if PacNet has been advised of the possibility of such damages.
14.4 Customer acknowledges and agrees that the fees charged by PacNet under this Agreement, including each Data Services Order Form, reflect the allocation of risks provided by the foregoing exclusive remedy and limitation of liability. By executing this Agreement, Customer acknowledges and represents that it has read and understands this allocation of risk limiting the liability of PacNet and that it understands that any modification of the allocation of risks set forth in this Agreement would affect the fees charged by PacNet. Customer acknowledges that it has negotiated the terms of this Agreement, and, in consideration of the fees charged by PacNet, agrees to the allocation of risk set forth herein.
15.1 Customer agrees to assume all liability for and indemnify and hold harmless, PacNet and its officers, directors, employees, representatives, affiliates, successors and assigns from and against all liability, loss, cost, damage, expense (including, without limitation, attorneys’ fees, investigators’ fees and litigation expenses), or claims for use of the Service and injury to or death of any person and damage to or destruction of any property resulting in whole or in part from any of the following:
(a) the material transmitted over PacNet’s facilities by Customer or any person provided access by Customer to so transmit, including, but not limited to, any claims of persons not a party to this Agreement for libel, slander, infringement of copyright or unauthorized use of a trade secret, trademark, trade name or service mark;
(b) claims of any person not a party to this Agreement arising out of acts or omissions of Customer or its agents, servants, employees, contractors or representatives;
(c) the use of PacNet’s facilities by Customer or any person provided access by Customer, including, but not limited to, claims for patent infringement arising from the act of Customer or Customer’s representative in combining PacNet’s facilities with the facilities of Customer or others, or using PacNet’s facilities in connection with those of Customer or others; and
(d) Customer’s or its affiliates’, employees’, agents’ or invitees’ failure to comply with all statutes, rules, regulations, orders and decisions issued by any federal, state or local governmental body or agency established thereby, relating to Customer’s use of the Service, including, but not limited to, Customer’s failure to observe those restrictions against resale which could jeopardize PacNet’s status as a private carrier under the regulations of the FCC.
15.2 Upon written notice from and at the sole discretion of PacNet, Customer shall undertake, at its own expense, the defense of any claim, lawsuit, administrative action or other proceeding brought against PacNet by any person or legal entity, including any public body, relating to any matter covered by this Agreement for which Customer has an obligation to assume liability for or to indemnify PacNet. Notwithstanding anything to the contrary hereunder, Customer shall not enter into any settlement without the prior written approval of PacNet. Customer shall pay all damages and costs finally agreed to or awarded against PacNet attributable to such claims, including, but not limited to, attorneys’ fees, court costs, settlement payments and amounts paid in satisfaction of judgments. The indemnity provided under this Section 14 shall apply to any and all lawsuits or administrative actions brought or threatened on any theory of relief available at law or equity or under the rules of any administrative agency and shall survive the cancellation of this Agreement.
16. LEGAL PROVISIONS
16.1. This agreement shall in all respects be interpreted and governed by the internal laws of the State of Washington. The place of making and the place of performance for all purposes shall be Seattle, Washington regardless of the actual place of execution or performance. In the event of any litigation between the parties, the sole and exclusive jurisdiction for such action shall be Superior Court of King County, Washington or the United States District Court for the Western District Court of Washington. Customer irrevocably consents to the jurisdiction and venue of the courts identified in the preceding sentence in connection with any action, suit, proceeding, or claim arising under or by reason of such Terms or Agreement.
16.2. Subscriber hereby waives any right to trial by jury of any claim arising out of this agreement and any related document, whether now or hereafter arising and whether sounding in contract, tort, or otherwise, and hereby consents and agrees that any such claim may, at Company’s election, be decided by trial without a jury and that Company may file an original counterpart or copy of this agreement with any court as written evidence of the waiver and agreement contained herein.
16.3. Subscriber will not assign all or any part of this agreement or any of its rights under this agreement to the service(s)s without the prior written consent of Company, provided that subscriber may assign all of its right, title, and interest in and to this agreement, upon sixty (60) days’ prior written notice to Company, to a successor to subscriber by way of merger, consolidation, or other corporate reorganization, or a sale of substantially all of subscriber’s assets, where such successor agrees in writing to be bound by all the provisions of this agreement. No assignment, with or without Company’s consent, will relieve subscriber from its obligations under this agreement. Subject to the foregoing restriction on assignment, this agreement will be fully binding on, inure to the benefit of, and be enforceable by the parties and their respective successors and assigns.
16.4. The prevailing party in any legal proceeding between the Subscriber and Company shall be entitled to recover from the other party it’s reasonable attorney’s fees and expenses incurred.
17. FORCE MAJEURE
17.1 Notwithstanding anything to the contrary herein, PacNet shall not be liable for any delay in, or failure of performance of, any obligation under this Agreement, nor shall such delay or failure of performance constitute a default under this Agreement, provided that such delay or failure is due in whole or in part to circumstances beyond PacNet’s reasonable control, including, but not limited to: acts of God, fire, explosion, vandalism, storm or other similar occurrence; any law, order, regulation, direction, action or request of the federal, state or local government or of any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more of said governments, or of any civil or military authority; acts or omissions of the local exchange carrier or other third party vendor; national emergencies; insurrections, riots; wars; acts of terrorism, or strikes, lock-outs or work stoppages.
17.2 If PacNet fails to perform any obligation under this Agreement by reason of force majeure and such failure continues for a period of ninety (90) days or less, then the Service affected shall continue as-is without liability to PacNet, but at no charge to Customer until such time as the Service is restored. If any such failure of performance continues for more than ninety (90) days, then the impacted Service may be canceled by either party with no liability on the part of any party.
17.3 The cancellation provisions specified in this section shall not apply to interruptions due in whole or in part, directly or indirectly, to any act or omission of the Customer or its customers, affiliates, agents or representatives, invitees or licensees, to the failure of Customer Facilities or the failure of any Service provided to Customer or PacNet by a third party. In the event of such interruption, Customer shall continue to be liable for all payments to PacNet.
18.1 The parties consent that this agreement shall be governed by the laws of the State of Washington and that the State of Washington shall be the jurisdiction and venue for any suit or court proceeding not resolved through arbitration.
18.2 This Agreement does not and shall not be construed as conveying to Customer any interest in any property of PacNet, but only the right to use the Service provided by PacNet in strict accordance with the terms of this Agreement. Customer acknowledges and agrees that PacNet retains all title and ownership in the PacNet property and further agrees that it shall not assert any ownership interest in such property or represent to any person or agency that this Agreement conveys any interest in PacNet property to Customer.
18.3 Waiver by one party of any breach of any provision of this Agreement shall not operate or be construed as a waiver by that party of any subsequent or continuing breach. No provision of this Agreement shall be deemed waived, amended, or modified by either party unless such waiver, amendment, or modification is in writing and signed by the party against whom it is sought to be enforced.
18.4 This Agreement (including the SLA and each related Data Services Order Form) is the complete and exclusive statement of the agreement between the parties. It supersedes any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this Agreement. This Agreement also supersedes the terms and conditions of any purchase order submitted by customer with respect to the subject matter hereof. The terms of this Agreement are hereby incorporated by reference into each Data Services Order Form and the SLA. In the event of a conflict between the terms of a Data Services Order Form or the SLA, and this Agreement, the terms of this Agreement shall prevail over conflicting terms in the Data Services Order Form or the SLA. Notwithstanding anything to the contrary herein, any credit provided under a Data Services Order Form for any service level failures or otherwise shall be Customer’s sole and exclusive remedy.
18.5 If any legal action is brought by either party against the other regarding the subject matter of this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief, ordinary, necessary and reasonable attorneys’ fees and expenses.
18.6 Section headings used in this Agreement are not part of this Agreement, but are used solely for the convenience of the parties.
18.7 This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided however, that Customer shall not transfer or assign its rights or obligations under this Agreement without the prior written consent of PacNet.
18.8 The Service provided by PacNet is subject to the condition that it will not be used for any unlawful purpose.
18.9 In the event that filed and effective tariffs of PacNet or its affiliates shall apply to the Services or any portion thereof, then such tariffs shall govern with respect to such Services.
18.10 The persons executing this Agreement on behalf of the parties hereto represent and warrant that they are fully authorized to execute and deliver this Agreement on behalf of the parties hereto.