HomeMy WebLinkAbout2011-004A�.J ORIGINAL
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AT&T MA Reference No.
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MASTER AGREEMENT
Customer
AT&T
Indian River County BOCC
AT&T Corp.
1800 27th Street
b its
Vero Beach, FL
b its authorized
32960
resentative
USA
Customer Contact (for notices)
AT&T Contact (for notices)
Name: Basil Dancy
701 NORTHPOINT PKWY
Title:
WEST PALM BEACH, FL
1800 27th Street
33407
Vero Beach , FL
With a copy to:
32960
AT&T Corp.
United States
One AT&T Way
Telephone: 7722261256
Bedminster, NJ 07921-0752
Fax:
ATTN: Master Agreement Support Team
Email: bdancy@ircgov.com
Email mast filatt.com
This Master Agreement ("Master Agreement"), between the customer named above ("Customer") and the AT&T entity named
above ), is effective when signed by both Customer and AT&T, and continues in effect as long as Services are
provided under this Master Agreement,
This Master Agreement will apply to all services and equipment Customer buys from AT&T, now and in the future, that are
provided under Pricing Schedules attached to or referencing this Master Agreement ("Services"). Other Services may be
provided by signing additional Pricing Schedules at any time. AT&T standard service offerings are described in Tariffs,
Guidebooks, Service Guides and other documents identified in this Master Agreement,
Customer
APPROVED AS TO FORM
AND LEGAL SCIFFICIER!
AT&T
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b its
authorized re resentative
b its authorized
re
resentative
By:1�t=cg
Name:
Bob Solari
Name:
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ry
Title:
Chairman
Title:
January 11, 2.011
Date:
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1r°
AM S. POLACKWICH
COUNTY ATTORNEY
AT&T and (?usiamer Corrfidentiai Information
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1V INTRODUCTION
1.1 Overview of Documents. The terms and conditions governing the Services that AT&T provides to Customer are set
forth in this Master Agreement, the following additional documents, and any other documents executed by the parties and
referencing this Master Agreement (which documents together with this Master Agreement are called "this Agreement"):
(a) Pricing Schedules. A Pricing Schedule (including related attachments) identifies the Services AT&T may provide to
Customer, the price (including discounts, if applicable) for each Service, and the term during which such prices are in
effect ("Pricing Schedule Term"),
(b) Tariffs and Guidebooks. "Tariffs" are documents containing the standard descriptions, pricing, and other terms and
conditions for a Service that AT&T files with regulatory commissions. "Guidebooks" are documents containing the
standard descriptions, pricing, and other terms and conditions for a Service that were, but no longer are, filed with
regulatory commissions. Tariffs and Guidebooks may be found at att.com/servicepublications or other locations AT&T
may designate.
(c) Acceptable Use Policy. AT&T's
Acceptable Use
Policy
("AUP")
applies to
Services provided over or accessing the
Internet. The AUP may be found
at att.com/aup, or
other
locations
control (other than
AT&T
may
designate.
(d) Service Guides. The description, pricing, and other terms and conditions for the Service not covered by a Tariff or
Guidebook may be contained in a Service Guide, which may be found at att.com/servicepublications or other locations
AT&T may designate.
1.2 Priority of Documents. The order of priority of the documents that form this Agreement is: Pricing Schedules; this
Master Agreement; the AUP; and Tariffs, Guidebooks and Service Guides; provided that, Tariffs will be first in priority in any
jurisdiction where existing law or regulation does not permit contract terms to take precedence over inconsistent tariff terms.
1.3 Revisions
to Documents. Subject to Section 8.2(c)
(Materially
Adverse Change), AT&T may revise Tariffs,
Guidebooks, Service
Guides or the AUP (collectively "Service
Publications") at
any time.
1.4 Execution by Affiliates. An AT&T Affiliate or Customer Affiliate may sign a Pricing Schedule referencing this
Agreement in its own name and such Affiliate contract will be a separate, but associated, contract incorporating the terms of
this Master Agreement with respect to that Pricing Schedule. Customer and AT&T will arrange to have their respective
Affiliates comply with this Agreement, regardless of whether an Affiliate has signed a Pricing Schedule,
1.5 Capitalized Terms. Capitalized terms not otherwise defined in this Agreement are defined in Section 11 (Definitions).
2. AT&T DELIVERABLES
2.1 Services. AT&T agrees to either provide or arrange to have an AT&T Affiliate provide Services to Customer in
accordance with this Agreement, subject to availability and operational limitations of systems, facilities and equipment. Where
required, an AT&T Affiliate authorized by the appropriate regulatory authority will be the service provider.
2.2 AT&T Equipment. Services may include use of cert
ain equipment owned by AT&T that is located at the Site ("AT&T
Equipment"), but title to the AT&T Equipment will remain with AT&T. Customer must provide electric power for the AT&T
Equipment and keep the AT&T Equipment physically secure and free from liens and encumbrances. Customer will bear the
risk of loss or damage to AT&T Equipment (other than ordinary wear and tear) except to the extent caused by AT&T or its
agents.
2.3 Software. Any software used with the Services will be governed by the written terms and conditions applicable to
such software. Title to software remains with AT&T or its supplier. Customer must comply with all such terms and conditions
and they take precedence over this Agreement as to such software.
3. CUSTOMER'S COOPERATION
3.1
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Access Right. Customer will in
a timely manner
allow AT&T to access property and equipment that Customer
controls
as reasonably required to provide
the Services, and
Customer will obtain, at Customer's expense, timely access for
AT&T to
property that Customer does not
control (other than
public property) as reasonably required to provide the Services.
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Access rights include the right to construct, install, repair, maintain, replace and remove access lines and network facilities, as
well as to use ancillary equipment space within a building, as necessary for Customer's connection to AT&T's network.
Customer must provide AT&T timely information and access to Customer's facilities and equipment as AT&T reasonably
requires to provide the Services, subject to Customer's reasonable security policies. Customer will furnish any conduit, holes,
wireways, wiring, plans, equipment, space, power/utilities, and other items reasonably required to perform installation of the
Services, and obtain any necessary licenses, permits and consents (including easements and rights-of-way). Customer will
have the Site ready for AT&T to perform its work according to a mutually agreed schedule.
3.2 Safe Working Environment. Customer will ensure that the location at which AT&T installs, maintains or provides
Services is a suitable and safe working environment, free of Hazardous Materials. "Hazardous Materials" means any
substance or material capable of posing an unreasonable risk to health, safety or property or whose use, transport, storage,
handling, disposal, or release is regulated by any law related to pollution, protection of air, water, or soil, or health and safety.
AT&T does not handle, remove or dispose of Hazardous Materials, and AT&T has no obligation to perform work at a location
that is not a suitable and safe working environment. AT&T will not be liable for any Hazardous Materials,
3.3 Users. "User" means anyone who uses or accesses any Service provided to Customer. Customer will cause Users
to comply with this Agreement, and Customer agrees that Customer is responsible for Users' use of any Services, unless
expressly provided to the contrary in applicable Service Publications,
3.4 Internet Services. If a Service is provided over or accesses the Internet, Customer, Customer's Affiliates, and Users
must comply with the AUP.
3.5 Resale of Services. Customer may not resell the Services to third parties without AT&T's written consent. Where
permitted under applicable law, Customer may resell the Services to Customer's Affiliates without AT&T's consent.
4. PRICING AND BILLING
4.1 Pricing and Pricing Schedule Term; Terms Applicable After End of Pricing Schedule Term. Unless a Pricing
Schedule states otherwise, the prices listed in a Pricing Schedule are stabilized until the end of the Pricing Schedule Term.
No promotion, credit or waiver set forth in a Service Publication will apply unless the Pricing Schedule states otherwise. At the
end of a Pricing Schedule Term, Customer will have the option to either: (a) cease using the Service (which will require
Customer to take all steps required by AT&T to terminate the Service); or (b) continue using the Service under a month-to-
month service arrangement. Unless a Pricing Schedule states otherwise, during any month-to-month service arrangement,
the prices, terms and conditions in effect on the last day of the Pricing Schedule Term will continue until changed by AT&T on
30 days' prior notice to Customer.
4.2 Additional Charges and Taxes. Prices set fort
h in a Pricing Schedule are exclusive of, and Customer will pay, all
current and future taxes (excluding those on AT&T's net income), surcharges, recovery fees, custom clearances, duties,
levies, shipping charges, and other similar charges (and any associated interest and penalties resulting from Customer's
failure to timely pay such taxes or similar charges) relating to the sale, transfer of ownership, installation, license, use or
provision of the Services, except to the extent Customer provides satisfactory proof of a valid tax exemption prior to the
delivery of Services. To the extent Customer is required by law to withhold or deduct any applicable taxes from payments due
to AT&T, Customer will use reasonable commercial efforts to minimize any such taxes to the extent allowed by law or treaty,
and Customer will furnish AT&T with such evidence as may be required by relevant taxing authorities to establish that such tax
has been paid so that AT&T may claim any applicable credit.
4.3 Billing. Unless a Pricing Schedule specifies otherwise, Customer's obligation to pay for all Services will begin upon
installation and availability of the Services to Customer. AT&T will invoice Customer for the Services on a monthly basis, or
otherwise as specified in the Pricing Schedule. Customer will pay AT&T without deduction (except for withholding taxes as
provided in Section 4.2 — Additional Charges and Taxes), setoff (except as provided in Section 4.5 — Delayed Billing; Disputed
Charges), or delay for any reason. At Customer's request, but subject to AT&T's consent (which may be withheld if there will
be operational impediments or tax consequences), Customer's Affiliates may be invoiced separately and AT&T will accept
payment from such Affiliates. Customer will be responsible for payment if Customer's Affiliates do not pay charges in
accordance with this Agreement. AT&T may require Customer or its Affiliates to tender a deposit if AT&T determines, in its
reasonable judgment, that Customer or Customer's Affiliates are not creditworthy.
4.4 Payments. Payment is due within 30 days after the date of the invoice (unless another date is specified in an
applicable Tariff or Guidebook) and must refer to the invoice number. Charges must be paid in the currency specified in the
invoice. Restrictive endorsements or other statements on checks are void. Customer will reimburse AT&T for all costs
associated with collecting delinquent or dishonored payments, including reasonable attorney's fees. AT&T may charge late
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payment fees (a) for Services contained in a Tariff or Guidebook, at the rate specified therein, or (b) for all other Services, at
the lower of 1.5% per month (18% per annum) or the maximum rate allowed by law for overdue payments.
4.5 Delayed Billing; Disputed Charges. Customer will not be required to pay charges for Services invoiced more than 6
months after close of the billing month in which the charges were incurred, except for automated or live operator assisted calls
of any type. If Customer disputes a charge, Customer will provide notice to AT&T specifically identifying the charges and the
reason it is disputed within 6 months after the date of the affected invoice or Customer waives the right to dispute the charge
(except to the extent applicable law or regulation otherwise requires). Disputed charges may be withheld, but if not paid when
due, Customer will incur late payment fees in accordance with Section 4.4 (Payments); however, to the extent AT&T
determines the charges Customer disputed and withheld were invoiced in error, late payment fees for such charges will be
reversed.
4.6 MARC. Minimum Annual Revenue Commitment ("MARC") means an annual revenue commitment of MARC -Eligible
Charges set forth in a Pricing Schedule that Customer agrees to satisfy during each 12 consecutive month period of the
Pricing Schedule Term. At the end of each such 12 month period, if Customer has failed to satisfy the MARC for the
preceding 12 month period, Customer will be invoiced a shortfall charge in an amount equal to the difference between the
MARC and the total of the applicable MARC -Eligible Charges incurred during the 12 month period, and payment will be due in
accordance with Section 4.4 (Payments).
4.7 Adjustments to MARC.
(a) In the event of a business downturn beyond Customer's control, or a corporate divestiture, merger, acquisition or
significant restructuring or reorganization of Customer's business, or network optimization using other Services, or
reduction of AT&T's prices, or force majeure events, any of which significantly impairs Customer's ability to meet
Customer's MARC, AT&T will offer to adjust the affected MARC to reflect Customer's reduced usage of Services (with
a corresponding adjustment to the prices or discount available at the reduced MARC level). If the parties reach
mutual agreement on a revised MARC, AT&T and Customer will amend the affected Pricing Schedule prospectively.
This Section 4.7 will not apply to a change resulting from Customer's decision to use service providers other than
AT&T. Customer will provide AT&T written notice and evidence of the conditions Customer believes will require the
application of this provision. This provision does not constitute a waiver of any charges, including monthly recurring
charges and shortfall charges Customer incurs prior to amendment of the affected Pricing Schedule.
(b) If Customer, through merger, consolidation, acquisition or otherwise, acquires a new business or operation, Customer
and AT&T may mutually agree to include the new business or operation under this Agreement. Such agreement will
specify the impact, if any, of such addition on Customer's MARC or other volume or growth discounts, and Customer's
attainment thereof.
5. CONFIDENTIAL INFORMATION
5.1 Confidential Information. Confidential Information means: (a) information the parties share with each other in
connection with this Agreement or in anticipation of providing Services under this Agreement, but only to the extent identified
as Confidential Information in writing; and (b) except as may be required by applicable law or regulation, the terms of this
Agreement and any pricing or other proposals.
5.2 Obligations. Each part
y's Confidential Information will, for a period of 3 years following its disclosure to the other
party (except in the case of software, which is indefinite): (a) be held in confidence; (b) be used and transmitted between
countries only for purposes of using the Services or performing this Agreement (including in the case of AT&T, the ability to
utilize Customer's Confidential Information in order to detect fraud, check quality, and to operate, maintain and repair the
Services); and (c) not be disclosed, except to the receiving party's employees, agents and contractors having a need -to -know
but only if such agents and contractors are not direct competitors of the other party and agree in writing to use and disclosure
restrictions as restrictive as this Section 5), or to the extent authorized to be revealed by law, governmental authority or legal
process (but only if such disclosure is limited to that which is so authorized and prompt notice is provided to the disclosing
party to the extent practicable and not prohibited by law, governmental authority or legal process).
5.3 Exceptions. The restrictions in this Section will not apply to any information that: (a) is independently developed by
the receiving party; (b) is lawfully received by the receiving party free of any obligation to keep it confidential; or (c) becomes
generally available to the public other than by breach of this Agreement.
5.4 Privacy Laws. Each party is responsible for complying with the privacy laws applicable to its business. If Customer
does not want AT&T personnel to comprehend Customer data to which they may have access in perf
orming Services,
Customer should encrypt such data so that it will be unintelligible. Until directed otherwise by Customer in writing, if AT&T
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designates a dedicated account representative as Customer's primary contact with AT&T, Customer authorizes that
representative to discuss and disclose Customer's customer proprietary network information (CPNI) to any employee or agent
of Customer without a need for further authentication or authorization.
6. DISCLAIMERS AND LIMITATIONS OF LIABILITY
6.1 Disclaimer of Warranties. AT&T MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, NON -INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE OR
COURSE OF DEALING. FURTHER, AT&T MAKES NO REPRESENTATION OR WARRANTY THAT TELEPHONE CALLS
OR OTHER TRANSMISSIONS WILL BE ROUTED OR COMPLETED WITHOUT ERROR OR INTERRUPTION (INCLUDING
CALLS TO 911 OR ANY SIMILAR EMERGENCY RESPONSE NUMBER), OR GUARANTEE REGARDING NETWORK
SECURITY, THE ENCRYPTION EMPLOYED BY ANY SERVICE, THE INTEGRITY OF ANY DATA THAT IS SENT, BACKED
UP, STORED OR SUBJECT TO LOAD BALANCING, OR THAT AT&T'S SECURITY PROCEDURES WILL PREVENT THE
LOSS OR ALTERATION OF, OR IMPROPER ACCESS TO, CUSTOMER'S DATA AND CONFIDENTIAL INFORMATION.
6.2 Limitation of Liability.
(a) AT&T'S ENTIRE LIABILITY, AND CUSTOMER'S EXCLUSIVE REMEDY, FOR DAMAGES ARISING OUT OF
MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS OR DEFECTS IN THE SERVICES, AND NOT
CAUSED BY CUSTOMER'S NEGLIGENCE, SHALL IN NO EVENT EXCEED THE APPLICABLE CREDITS
SPECIFIED IN A SERVICE PUBLICATION OR PRICING SCHEDULE, OR IF NO CREDITS ARE SPECIFIED, AN
AMOUNT EQUIVALENT TO THE PROPORTIONATE CHARGE TO CUSTOMER FOR THE PERIOD OF SERVICE
DURING WHICH SUCH MISTAKE, OMISSION, INTERRUPTION, DELAY, ERROR OR DEFECT IN THE
SERVICES OCCURS AND CONTINUES. IN NO EVENT SHALL ANY OTHER LIABILITY ATTACH TO AT&T.
(b) SECTION 6.2(a) WILL NOT APPLY TO:
(i) BODILY INJURY, DEATH, OR DAMAGE TO REAL OR TANGIBLE PROPERTY DIRECTLY CAUSED BY
AT&T'S NEGLIGENCE;
BREACH OF SECTION 5 (Confidential Information), SECTION 10.1 (Publicity), OR SECTION 10.2
(Trademarks);
SETTLEMENT, DEFENSE OR PAYMENT OBLIGATIONS UNDER SECTION 7 (Third Party Claims); OR
(iv) DAMAGES ARISING FROM AT&T'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(c) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE, RELIANCE, OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES, OR INCREASED COST OF
OPERATIONS,
6.3 Disclaimer of Liability. AT&T WILL
NOT BE LIABLE FOR ANY DAMAGES, EXCEPT TO THE EXTENT CAUSED
BY AT&T'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ARISING OUT OF OR RELATING TO:
INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT,
SERVICES, CONTENT, OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; SERVICE DEFECTS,
SERVICE LEVELS, DELAYS, OR INTERRUPTIONS (EXCEPT FOR LIABILITY FOR SUCH EXPLICITLY SET FORTH IN
THIS AGREEMENT); ANY INTERRUPTION OR ERROR IN ROUTING OR COMPLETING CALLS OR OTHER
TRANSMISSIONS (INCLUDING 911 CALLS OR ANY SIMILAR EMERGENCY RESPONSE NUMBER); LOST OR ALTERED
MESSAGES OR TRANSMISSIONS; OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS, OR
DESTRUCTION OF CUSTOMER'S, ITS AFFILIATE'S, USERS', OR THIRD PARTIES' APPLICATIONS, CONTENT, DATA,
PROGRAMS, CONFIDENTIAL INFORMATION, NETWORK, OR SYSTEMS,
6.4 Application and Survival. The disclaimer of warranties and limitations of liability set fort
h in this Agreement will
apply regardless of the form of action, whether in contract, equity, tort, strict liability or otherwise and whether damages were
foreseeable, and will apply so as to in the liability of each party and its Affiliates, and their respective employees, directors,
subcontractors, and suppliers. The limitations of liability and disclaimers set out in this Section 6 will survive failure of any
exclusive remedies provided in this Agreement.
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�. THIRD PARTY CLAIMS
7.1 AT&T's Obligations. AT&T agrees at its expense to defend or settle any third -party claim against Customer, its
Affiliates, and its and their respective employees and directors, and to pay all compensatory Damages that a court may finally
award against such parties to the extent the claim alleges that a Service provided to Customer under this Agreement infringes
any patent, trademark, copyright, or trade secret, but not in circumstances where the claimed infringement arises out of or
results from: (a) Customer's, its Affiliate's or a User's content; (b) modifications to the Service by Customer, its Affiliates or
third parties, or combinations of the Service with any services or products not provided by AT&T; (c) AT&T's adherence to
Customer's or its Affiliate's written requirements; or (d) use of the Service in violation of this Agreement.
7.2 Customer's Obligations. Customer agrees at its expense to defend or settle any third -party claim against AT&T,
AT&T's Affiliates, and its and their respective employees, directors, subcontractors, and suppliers, and to pay all
compensatory Damages that a court may finally award against such parties to the extent the claim: (a) arises out of
Customer's, its Affiliate's, or a User's access to, or use of, the Services and the claim is not the responsibility of AT&T under
Section 7.1; (b) alleges that a Service infringes any patent, trademark, copyright or trade secret, and falls within the exceptions
in Section 7.1; or (c) alleges a breach by Customer, its Affiliates, or Users of a software license agreement governing software
provided in connection with the Services.
7.3 Infringing Services. Whenever AT&T is liable under Section 7.1, AT&T may at its option either procure the right for
Customer to continue using, or may replace or modify, the alleged infringing Service so that the Service becomes non -
infringing.
7.4 Notice and Cooperation. The party seeking defense or settlement of a third party claim under this Section 7 will
notify the other party promptly upon learning of any claim for which defense or settlement may be sought, but failure to do so
will have no effect except to the extent the other party is prejudiced thereby. The party seeking defense or settlement will
allow the other party to control the defense and settlement of the claim and will reasonably cooperate with the defense; but the
defending party will use counsel reasonably experienced in the subject matter at issue, and will not settle a claim without the
consent of the party being defended, which consent will not be unreasonably withheld or delayed, except that no consent will
be required where relief on the claim is limited to monetary damages that are paid by the defending party under this Section 7.
8. SUSPENSION AND TERMINATION
8.1 Termination of Agreement. This Agreement may be terminated immediately upon notice by either party if the other
party becomes insolvent, ceases operations, is the subject of a bankruptcy petition, enters receivership or any state insolvency
proceeding, or makes an assignment for the benefit of its creditors.
8.2 Termination or Suspension of Serv
ices. The following additional termination provisions apply:
(a) Fraud or Abuse. AT&T may terminate or suspend an affected Service, and if the activity implicates the entire
Agreement, terminate the entire Agreement, immediately by providing Customer with as much advance notice as is
reasonably practicable under the circumstances if Customer: (i) commits a fraud upon AT&T; (ii) utilizes the Service
to commit a fraud upon another party; (iii) unlawfully uses the Service; (iv) abuses or misuses AT&T's network or
Service; or (v) interferes with another customer's use of AT&T's network or services.
(b) Material Breach. If either party fails to perf
orm or observe any material term or condition of this Agreement,
including non-payment of charges (subject to Section 4.5 —Delayed Billing; Disputed Charges), and such failure
continues unremedied for 30 days after receipt of notice, the non -breaching party may terminate the affected
Service, and if the breach implicates the entire Agreement, terminate the entire Agreement. If Customer is in breach,
AT&T may elect to suspend (and later terminate) the affected Service, and if the breach implicates the entire
Agreement, suspend (and later terminate) the entire Agreement.
(c) Materially Adverse Change. If AT&T revises a Service Publication and the revision has a materially adverse impact
on Customer, and AT&T does not effect revisions that remedy such materially adverse impact within 30 days after
notice from Customer, then Customer may, as Customer's sole remedy, elect to terminate the affected Service
Components on 30 days' notice to AT&T, given not later than 90 days after Customer first learns of the revision to
the Service Publication. However, a revision to a Service Publication will not be considered materially adverse to
Customer if it changes prices that are not fixed (stabilized) in a Pricing Schedule, if the price change was mandated
by a governmental authority, or if the change affects a charge imposed under Section 4.2 (Additional Charges and
Taxes).
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(U) Internet Services. If Customer fails to rectify a violation of the AUP within 5 days after receiving notice from AT&T,
AT&T may suspend the applicable portion of the Service. AT&T has the right; however, to suspend or terminate the
applicable portion of the Service immediately when: (i) AT&T's suspension or termination is in response to multiple
or repeated AUP violations or complaints; (ii) AT&T is acting in response to a court order or governmental notice that
certain conduct must be stopped; or (iii) AT&T reasonably determines: (a) that it may be exposed to sanctions,
liability, prosecution, or other adverse consequences under applicable law if AT&T were to allow the violation to
continue; (b) that such violation may cause harm to or interfere with the integrity or normal operations or security of
AT&T's network or networks with which AT&T is interconnected or interfere with another customer's use of AT&T
Services or the Internet; or (c) that such violation otherwise presents imminent risk of harm to AT&T or AT&T's
customers or their respective employees.
(e) Infringing Services. If neither of the options described in Section 7.3 (Infringing Services) are reasonably available,
AT&T may terminate the affected Service without liability other than as stated in Section 7.1 (AT&T's Obligations).
(f) Hazardous Materials. If AT&T encounters any Hazardous Materials at the Site where AT&T is to install, maintain or
provide Services, AT&T may terminate the affected Service or Service Component, or suspend performance until
Customer removes and remediates Hazardous Materials at Customer's expense in accordance with applicable law.
8.3 Withdrawal of Services. Notwithstanding that a Pricing Schedule may commit AT&T to provide a Service to
Customer for a Pricing Schedule Term, and unless applicable law or regulation mandates otherwise, AT&T may discontinue
providing a Service upon 12 months' notice, or a Service Component upon 120 days' notice, but only where AT&T generally
discontinues providing the Service or Service Component to similarly—situated customers.
8.4 Effect of Termination.
(a) Termination by either party of a Service does not waive any other rights or remedies a party may have under this
Agreement. Termination or suspension of a Service will not affect the rights and obligations of the parties regarding
any other Service.
(b) If a Service or Service Component is terminated, Customer will pay all amounts incurred prior to the effective date of
termination. If Customer terminates a Service or Service Component prior to the date Customer's obligation to pay
for Services begins as provided in Section 4.3 (Billing), Customer will reimburse AT&T for time and materials
incurred prior to the effective date of termination, plus any third party charges resulting from the termination.
8.5 Termination Charges.
(a) If Customer terminates this Agreement or an affected Service or Service Component pursuant to Sections 8.1
(Termination of Agreement), 8.2(b) (Material Breach), or 8.2(c) (Materially Adverse Change); AT&T terminates a
Service pursuant to Section 8.2(e) (Infringing Services), or AT&T withdraws a Service pursuant to Section 8.3
(Withdrawal of Services), Customer will not be liable for the termination charges set forth in Section 8.5(b).
(b) If Customer terminates a Service or Service Component other than as set fort
h in Section 8.5(a), or AT&T terminates
an affected Service or Service Component pursuant to Sections 8.1 (Termination of Agreement), or 8.2(a) (Fraud or
Abuse), 8.2(b) (Material Breach), 8.2(d) (Internet Services), or 8.2(f) (Hazardous Materials), Customer will pay
applicable termination charges as follows: (i) if termination occurs before the end of the Minimum Payment Period,
Customer will pay 50% (unless a different percentage is specified in the Pricing Schedule) of the monthly recurring
charges for the terminated Service or Service Component multiplied by the months remaining in the Minimum
Payment Period, plus any waived or unpaid non-recurring charges identified in the Pricing Schedule (including, but
not limited to, any and all charges for failure to satisfy a Minimum Retention Period (MRP)), plus any charges
incurred by AT&T from a third party (e.g., not an AT&T Affiliate) due to the termination, all of which will, if applicable,
be applied to Customer's MARC -Eligible Charges; and (ii) if Customer terminates a Pricing Schedule that has a
MARC, Customer will pay an amount equal to 50% of the unsatisfied MARC, after applying amounts received
pursuant to (i), for the balance of the Pricing Schedule Term.
(c) The charges set forth in Section 8.5(b)(i) will not apply if a terminated Serv
ice Component is replaced with an
upgraded Service Component at the same Site, but only if (i) the Minimum Payment Period and associated charge
for the replacement Service Component are equal to or greater than the Minimum Payment Period and associated
charge for the terminated Service Component, and (ii) the upgrade is not restricted in the applicable Service
Publication.
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9. IMPORT/EXPORT CONTROL
The parties acknowledge that equipment, services, software, and technical information (including technical assistance and
training) provided under this Agreement may be subject to import and export laws, conventions or regulations, and any use or
transfer of the equipment, products, software, and technical information must be in compliance with all such laws, conventions
and regulations. The parties will not use, distribute, transfer, or transmit the equipment, services, software, or technical
information (even if incorporated into other products) except in compliance with such laws, conventions and regulations.
Customer, not AT&T, is responsible for complying with such laws, conventions and regulations for all information, equipment
and software Customer transmits between countries using the Services.
10. MISCELLANEOUS PROVISIONS
10.1
Publicity.
Neither
party may
issue
any public statements or announcements relating to the terms of this Agreement
or
the
provision of
Services
without the
prior
written consent of the other party.
10.2 Trademarks. Each party agrees not to display or use, in advertising or otherwise, any of the other party's trade
names, logos, trademarks, service marks, or other indicia of origin without the other party's prior written consent, which
consent may be revoked at any time by notice.
10.3 Force Majeure. Except for payment of amounts due, neither party will be liable for any delay, failure in performance,
loss or damage due to fire, explosion, cable cuts, power blackout, earthquake, flood, strike, embargo, labor disputes, acts of
civil or military authority, war, terrorism, acts of God, acts of a public enemy, acts or omissions of carriers or suppliers, acts of
regulatory or governmental agencies, or other causes beyond such party's reasonable control.
10.4 Amendments and Waivers. Any supplement to or modification or waiver of any provision of this Agreement must be
in writing and signed by authorized representatives of both parties. A waiver by either party of any breach of this Agreement
will not operate as a waiver of any other breach of this Agreement.
10.5 Assignment and Subcontracting.
(a) This Agreement may not be assigned by either party without the prior written consent of the other party (which
consent will not be unreasonably withheld or delayed). Customer may, without AT&T's consent, but upon notice to
AT&T, assign in whole or relevant part, its rights and obligations under this Agreement to an Affiliate, but Customer
will remain financially responsible for the performance of such obligations. AT&T may, without Customer's consent,
assign in whole or relevant part, its rights and obligations under this Agreement to an Affiliate, or subcontract to an
Affiliate or a third party work to be performed under this Agreement, but AT&T will in each such case remain
financially responsible for the performance of such obligations.
(b) In countries where AT&T does not have an Affiliate to provide Service, AT&T may assign its rights and obligations
related to a Service to a local service provider, but AT&T will remain responsible to Customer for such obligations. In
certain countries, Customer may be required to contract directly with the local service provider.
(c) Any assignment other than as permitted by this Section 10.5 is void.
10.6 Severability. If any port
ion of this Agreement is found to be invalid or unenforceable or if, notwithstanding Section
10.10 (Governing Law), applicable law mandates a different interpretation or result, the remaining provisions will remain in
effect and the parties will negotiate in good faith to substitute for such invalid, illegal, or unenforceable provision a mutually
acceptable provision consistent with the original intention of the parties.
10.7 Injunctive Relief. Nothing in this Agreement is intended, or should be construed, to limit a part
10.8
Legal Action. Any
legal action arising in
y's right to seek
preliminary or permanent injunctive relief from a court of
competent jurisdiction for a
breach of
any
provision of this Agreement.
10.8
Legal Action. Any
legal action arising in
connection
with this Agreement must be filed within 2 years after the cause
of
action
accrues or
it will
be
deemed time-barred
and waived.
The parties waive any statute of limitations to the contrary.
10.9 Notices. All notices required under this Agreement will be delivered in writing to the recipient's contact designated on
the cover page of this Master Agreement, or to such other contact as designated in writing from time to time. Notices shall be
by internationally recognized overnight courier, certified or registered mail, email, or facsimile and will be effective upon receipt
or when delivery is refused, whichever occurs sooner.
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10.10 Governing Law. This Agreement will be governed by the law of the State of New York, without regard to its conflict
of law principles, unless a regulatory agency with jurisdiction over the applicable Service applies a different law. The United
Nations Convention on Contracts for International Sale of Goods will not apply.
U. Compliance with Laws. Each party will comply with all applicable laws, regulations, and orders issued by courts or
other governmental bodies of competent jurisdiction.
10.12 No Third Party Beneficiaries. This Agreement is for the benefit of Customer and AT&T, and does not provide any
third party (including Users) the right to enforce or bring an action for any remedy, claim, liability, reimbursement, cause of
action, or other right or privilege.
10.13 Survival. The respective obligations of Customer and AT&T that by their nature would continue beyond the
termination or expiration of this Agreement, including without limitation, the obligations set forth in Section 5 (Confidential
Information), Section 6 (Disclaimers and Limitations of Liability), and Section 7 (Third Party Claims), will survive termination or
expiration.
10.14 Agreement Language. The authentic language of this Agreement is English. If there is a conflict between this
Agreement and any translation, the English version will take precedence.
10.15 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the
Services provided under this Agreement. Except as provided in Section 2.3 (Software), this Agreement supersedes all other
agreements, proposals, representations, statements or understandings, whether written or oral, concerning the Services or the
rights and obligations relating to the Services, and the parties disclaim any reliance thereon. This Agreement will not be
modified or supplemented by any written or oral statements, proposals, representations, advertisements, service descriptions
or purchase order forms not expressly set forth in this Agreement.
11. DEFINITIONS
The following terms have the meanings set forth below:
"Affiliate" of a party means any entity that controls, is controlled by, or is under common control with, such party.
"Damages" means collectively all injury, damage, liability, loss, penalty, interest and expense incurred.
"Effective Date" means, for any Pricing Schedule, the date on which the last part
y signs the Pricing Schedule unless a later
date is required by regulation or law.
"MARC -Eligible Charges" means, unless the applicable Pricing Schedule indicates otherwise, the recurring and usage
chargesI after deducting applicable discounts and credits (other than outage or SLA credits), that AT&T charges Customer for
the Services identified in the applicable Pricing Schedule as MARC -contributing. The following are not MARC -Eligible
Charges: (a) charges for or in connection with Customer's purchase of equipment; (b) taxes; and (c) charges imposed in
connection with governmentally imposed costs or fees (such as USF, PICC, payphone service provider compensation, E911
and deaf relay charges).
"Minimum Payment Period" means, in respect to any Service, the minimum period for which Customer is required to pay
recurring charges for the Service, as specified in the Pricing Schedules or Service Publication for that Service.
"Minimum Retention Period" means, in respect to any Service, the period of time for which Customer is required to maintain
service to avoid the payment of certain credits, waived charges, or unpaid amortized charges, all as specified in the Pricing
Schedule or Service Publication for that Service.
"Serv
ice Component" means an individual component of a Service provided under this Agreement.
"Site" means Customer's physical location, including Customer's collocation space on AT&T's, its Affiliate's, or subcontractor's
property, where AT&T installs or provides a Service.
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