Revised: April 20, 2023
These Service Terms shall be applicable to all Services ordered by a Customer from a Solution Partner or Service Provider (each a “Service Provider”) on the SecurEdge Ecosystem managed by Secure Edge Networks, Inc. (‘SecurEdge”) . These Terms and Conditions form an integral part of the Customer Agreement (the “Customer Agreement”) to the Secured Edge Networks, Inc. Ecosystem Agreement (the “Agreement”) between Customer and SecurEdge (each a “Party”).
1.0 TERMS APPLICABLE TO ALL SERVICES
1.1 General Terms and Conditions. All prospective work, products and services requested by Customer shall be subject to approval by Service Provider, and Service Provider reserves the right in its good faith discretion to decline to provide service to the Customer.
1.2 Relationship. Neither Party shall have the authority to bind the other by contract or otherwise make any representations or guarantees on behalf of the other. Both Parties acknowledge and agree that the relationship arising from the Agreement and the Customer Agreement is one of independent contractor, and does not constitute an agency, joint venture, partnership, employee relationship or franchise.
1.3 Term. Service Provider will provide to Customer certain services (“Services”) as specifically set forth in one or more orders executed by Customer (“Service Order” or “Order”). The term for each Service ordered by Customer will be as indicated on the applicable Service Order, Exhibit or Customer Agreement. (“Service Term”). At the end of the initial Service Term for any Service, such Service shall automatically renew for a period equal to the initial Service Term (each successive renewal a “Renewal Term”) unless either party gives written notice of non-renewal (i.e. the Service(s) shall be disconnected at the end of the current Term) to the other, such notice to be delivered at least sixty (60) calendar days before the end of the current Service or Renewal Term, excepting international services for which such notice shall be delivered at least ninety (90) calendar days before the end of the current Service or Renewal Term. Customer charges, as set forth in the Service Order, for Services provided by Service Provider during the Service Term shall continue to apply to Customer’s Service throughout any Renewal Term, unless modified pursuant to the terms specified in “Rates Adjustments and Material Changes” below.
1.4.1 Service Provider, at its option and in addition to any other remedy or relief allowed by law, including Customer’s obligation to pay applicable Early Termination Charges as set forth below, may terminate the Service Order and the Customer Agreement immediately upon written notice to Customer upon the occurrence of any of the following:
22.214.171.124 Customer is convicted of, or pleads no contest to, any felony or other crime that might adversely affect the reputation or goodwill of Service Provider or its affiliates, as determined by Service Provider.
126.96.36.199 Customer engages in any fraudulent activities.
188.8.131.52 Customer makes an assignment for the benefit of creditors, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it (if not dismissed within thirty (30) days of filing), or has an Order for Relief under Title 11 of the United States Code entered against Customer by the Court of the United States; or a trustee or receiver of a substantial part of Customer’s assets is appointed by any Court.
184.108.40.206 Customer violates any administrative procedures or guidelines established by Service Provider for all Customer services provided under the Customer Agreement.
220.127.116.11 Customer fails to comply with any material term of the Customer Agreement or the Agreement. Where the failure is a nonpayment by Customer of any charge when due, Service Provider may, at its option, terminate or suspend Service or require a deposit by Customer in an amount determined by Service Provider
18.104.22.168 Customer violates the section titled “Assignment” below.
22.214.171.124 Customer fails to pay Service Provider in accordance with the terms of the Service Order or Customer Agreement.
1.4.2 Any Service may be terminated immediately upon written notice by either party if the other party has violated the other party’s Marks.
1.4.3 Customer shall be responsible for payment of all charges for terminated Services incurred as of the effective date of termination. Customer shall also be liable to Service Provider for any Early Termination Charges, if specified in a Service Order in the event that Service Provider terminates under Sections 126.96.36.199 through 188.8.131.52, or in the event Customer terminates without cause.
1.4.4 In the event Customer deems Service Provider to be in breach of the Customer Agreement, Customer shall provide written notice of such alleged breach and Service Provider shall have thirty (30) following its receipt of such notice within which to cure the breach
1.4.5 Termination by either party of a Service does not waive any other rights or remedies it may have under this Agreement. Termination or suspension of a Service shall not affect the rights and obligations of the parties under any other Service.
1.4.6 Termination by either party shall not relieve Customer from paying all fees and costs for Services provided prior to the date of termination, or for the payment of all fees and costs for any Services which are not terminated.
1.5 Assignment. The Service Order shall be binding on Customer and its respective affiliates, successors and assigns. Customer shall not assign, sell or transfer the Service Order, the Customer Agreement or the right to receive the Services provided thereunder, whether by operation of law or otherwise, without the prior written consent of Service Provider, such consent shall not be unreasonably withheld by Service Provider.
1.6.1 Service Provider will bill Customer for the total amount of the Monthly Recurring Charges (“MRC”) in advance and for usage based Services in arrears on a monthly basis except for charges for installation, hardware and other non-recurring charges that Customer shall pay in advance of any Service being provisioned by Service Provider. On the first billing for dedicated circuits and Services, Service Provider will charge a prorated amount for all MRC from the date of activation to the end of the month in addition to charging a total amount for all MRC one month in advance. All invoices will be provided electronically through Customer Console.
1.6.2 Customer shall pay Service Provider for the Services at the rates and charges and at the times specified in the Service Order and pricing summary attached thereto, without deduction, setoff or delay for any reason. Charges set forth in the Service Order are exclusive of any applicable taxes. Customer may be required at any time to pay a deposit if Service Provider determines that a deposit is necessary.
1.6.3 Customer shall pay all shipping charges, taxes (excluding those on Service Provider’s net income) and other similar charges (and any related interest and penalties) relating to the sale, transfer of ownership, installation, license, use or provision of the Services.
1.6.4 Customer will be able to place future orders under the terms and conditions of this contract. Customer will be responsible for signing a single site order form that will be countersigned by Service Provider for acceptance of any future sites or pricing. Service Provider reserves the right to change any and all pricing for future orders placed against this contract.
1.7 Payment. All amounts stated on each invoice are due and payable in U.S. dollars within twenty-five (25) calendar days of the date on which Service Provider sends the invoice to Customer (the “Due Date”). Customer will remit all payments via Customer Console either: (i) Via ACH to such bank account as Service Provider may in writing direct Customer to remit payment to or (ii) via credit card (surcharges may apply) and shall reference invoice number. Restrictive endorsements or statements on or accompanying any form of payment accepted by Service Provider will not be binding upon Service Provider and shall be void and of no effect. In the event Service Provider enters into Service Orders or Statements of Work, or otherwise provides Service(s), directly with subsidiaries of Customer (including but not limited to any third parties owned or operated by Customer), Customer shall remain liable for the full performance of such subsidiary/third party under the Customer Agreement, including liability for the payment of invoices for all Services provided to such entity. Subject to the foregoing, Service Provider shall, upon agreement of Customer, invoice such subsidiary directly for the payment of the applicable invoices. Notwithstanding any other provision in the Customer Agreement , Customer shall be responsible for payment of any and all charges associated with any of the Services thereunder, regardless of whether such usage was authorized or intended, including but not limited to fraudulent, unauthorized and/or unintended use of the Services by Customer, any third-party, or otherwise. Service Provider will not be liable for charges, costs or damages related to any usage of the Services and Customer shall indemnify Service Provider for any costs or expenses incurred by Service Provider for such usage. Furthermore, Customer shall be solely responsible for protecting against any third-party’s use of the Services, including but not limited to fraudulent, unauthorized and/or unintended use of the Services.
1.8 Late Payment. If Customer fails to remit payment of all undisputed amounts by the Due Date, Service Provider, in addition to other remedies available to it under the Customer Agreement or at law, may charge Customer a late fee of the lesser of 1.5% per month or the maximum fee allowed by law of the unpaid balance which shall accrue from the Due Date of the invoice.
1.9 Billing Disputes. In the event an Customer fails to make full payment of all amounts due by the due date, Customer shall also pay interest at the rate of the lesser of (i) one and one-half percent per month, or (ii) the maximum lawful monthly rate under applicable state law, of the unpaid balance which amount shall accrue from the due date until paid (“Late Fee”). Upon Customer disputing any charges, Customer shall: (i) pay all undisputed charges by the due date; (ii) present by the due date a written statement of amounts disputed in good faith in reasonable detail with supporting documentation; and, (iii) negotiate in good faith to resolve any bona fide dispute within ten (10) business days. Disputed charges resolved in favor of Service Provider, along with any applicable late fee, will be due and payable on the following month’s billing cycle. Disputed charges resolved in favor of Customer will be credited to Customer on the following month’s billing cycle and no late fees shall apply. Notwithstanding anything else to the contrary, (a) Customer must provide Service Provider with written notice of any billing dispute within (30) days following the due date for the application bill being disputed, and (b) no credits will be issued for bills older than six (6) months regardless of when the dispute arose. Notwithstanding the forgoing, Service Provider shall have the right to determine any billing dispute in its sole discretion, which shall be exercised in good faith.
1.10 Early Termination Charge. If Customer terminates any Service, in whole or in part, prior to the end of the then current Service Term applicable to that Service, in addition to any outstanding invoices (including previously disputed invoice amounts) and any other damages or liability of Customer resulting from such termination, Customer must pay Service Provider a lump sum Early Termination charge as follows:
Monthly recurring charges for the terminated Service as defined in the applicable Service Order, or otherwise as indicated on the most recent bill for such Service, for 100% of all remaining months of the then current Service Term.
100% of any invoices or charges incurred by Service Provider from any underlying provider associated with the early termination of the Service, including but not limited to construction and related costs, but excluding charges described in paragraph a. above and outstanding invoices and;
Any previously waived charges, including but not limited to, set-up or installation charges.
1.11 Dispute Resolution. In the event either Party commences any legal action in connection with a dispute arising under the Customer Agreement, upon final resolution of the matters in controversy, the prevailing Party in such action shall be entitled to recover its out-of-pocket expenses, court costs and reasonable attorney’s fees incurred. Nothing herein shall prevent any party from applying to any state or federal court for injunctive relief in connection with a dispute arising under the Customer Agreement.
1.12 Suspension and Termination of Service. In the event charges due pursuant to the Customer billings are not paid in full, for any reason whatsoever other than good faith disputes currently in the Billing Dispute resolution process described above, Service Provider shall have the right to suspend or terminate all or any portion of the Services to such Customer until such time as such Customer has paid in full all charges, including any applicable late fees, and/or reconnection fees which may include costs for reinstallation of the Services. Following such payment, Service Provider shall reinstate Services to such Customer unless the Services were terminated in which Early Termination charges shall apply. Service Provider shall document monthly charges due by Customer in an invoice to Customer, which may be electronically delivered to Customer. Customer shall be fully responsible for payment to Service Provider for the full amount of invoice including without limitation any fraudulent or unauthorized use by Customer or any third party, as well as any federal, state, county, local or other governmental taxes, fees or duties now or hereafter imposed on the sale or use of the Services.
1.13 Payment Security and Credit. Customer acknowledges and agrees that Service Provider may reasonably require additional security and/or payment terms under the Customer Agreement or any Service Order prior to the commencement of Services thereunder or during the term thereunder, and Customer agrees to comply with such request. Furthermore, if at any time Service Provider deems in its good faith discretion that a security deposit is required, Service Provider shall provide Customer with ten (10) business days’ notice and Customer shall provide such security deposit within the ten (10) day period. Failure by Customer to provide such security deposit shall be material breach of the Customer Agreement and in addition to any other legal remedies available to Service Provider shall be grounds for immediate suspension and/or termination of all Services provided thereunder. Customer agrees to provide and/or execute any additional collateral security documents as may be reasonably required by Service Provider. Service Provider may establish a credit limit for the procurement of the Services by Customer and such credit limit may change from time to time. Service Provider will not automatically notify Customer of any such change but will supply such information to Customer upon Customer's request.
1.14 Rate Adjustments and Material Changes. Service Provider may adjust its rates and charges, or impose additional rates or surcharges, to Customer to recover amounts Service Provider is required by governmental, quasi-governmental or other regulatory authorities to collect on their behalf or to pay to others in support of statutory or regulatory programs, plus allocable amounts related to the administrative costs incurred by Service Provider associated with these charges or programs. Service Provider may also perform periodic reviews of the Customer’s accounts and services and reserves the right to adjust Customer’s rates and charges upon 30 days written notice in the event of changes in the underlying costs to Service Provider for the Services provided to Customer. Service Provider may make billing adjustments for Services for one hundred and eighty days (180) after the date of the invoice or after the date of the Service for Services provided by Service Provider or for the greater of one hundred eighty (180) days or any period allowed by law, government rule or regulation or contract. Furthermore, Service Provider reserves the right to eliminate any Service offerings and/or modify any charges for Service offerings upon written notice to Customer.
1.15 WARRANTY. SERVICE PROVIDER MAKES NO WARRANTY WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF THE SERVICES OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES BY SERVICE PROVIDER ARE HEREBY EXCLUDED AND DISCLAIMED. FOR THE PURPOSE OF THIS SECTION, THE TERM "SERVICE PROVIDER" AND "CUSTOMER" SHALL BE DEEMED TO INCLUDE SERVICE PROVIDER, CUSTOMER, AND THEIR RESPECTIVE EMPLOYEES, AGENTS, OFFICERS, DIRECTORS AND AFFILIATES.
1.16 LIMITATION OF LIABILITY. SERVICE PROVIDER WEBSITES, TOOLS AND SYSTEMS (THE “SYSTEMS”) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER SERVICE PROVIDER NOR ANY PERSON ASSOCIATED WITH SERVICE PROVIDER MAKES ANY WARRANTY OR REPRESENTATION CONCERNING THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SYSTEMS. WITHOUT LIMITING THE FOREGOING, NEITHER SERVICE PROVIDER NOR ANYONE ASSOCIATED WITH SERVICE PROVIDER REPRESENTS OR WARRANTS THAT THE SYSTEMS, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SYSTEMS WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE SYSTEMS OR THE SERVER(S) THAT MAKE(S) IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SYSTEMS WILL OTHERWISE MEET CUSTOMER’S SPECIFIC NEEDS OR EXPECTATIONS.
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THE CUSTOMER AGREEMENT OR ANY SERVICE ORDER, SERVICE PROVIDER'S LIABILITY ARISING OUT OF THE CUSTOMER AGREEMENT OR ANY SERVICE ORDER, INCLUDING BUT NOT LIMITED TO, (i) MISTAKES, (ii) ACCIDENTS, (iii) OMISSIONS, (iv) INTERRUPTIONS, (v) ERRORS, (vi) DEFECTS OR MALFUNCTIONS OF ANY EQUIPMENT, OR (vii) DELAYS OR DEFECTS IN THE ORDERING, PROCESSING, PROVISIONING, INSTALLATION, PERFORMANCE OR TRANSMISSION OF ANY SERVICES, SHALL IN NO EVENT EXCEED THE AMOUNT OF SERVICE FEES (EXCLUDING AMOUNTS PAID TO SERVICE PROVIDER FOR THE PURPOSE OF PAYING ANY THIRD PARTY INVOICES) CUSTOMER HAS PAID TO SERVICE PROVIDER FOR THE SPECIFIC SERVICE ON THE APPLICABLE SERVICE ORDERS SPECIFICALLY AFFECTED BY AND RELATED TO THE ACTIVITIES GIVING RISE TO THE LIABILITY HEREUNDER, DURING THE TWO (2) MONTHS IMMEDIATELY PRIOR TO THE DATE THE LIABILITY AROSE. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR ANY OTHER PERSON, FIRM OR ENTITY, FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, EVEN IF FORESEEABLE, ARISING OUT OF ANY BREACH, MISTAKE, ACCIDENT, ERROR, OMISSION, INTERRUPTION, DELAY OR DEFECT IN THE ORDERING, PROCESSING, PROVISIONING, INSTALLATION, PERFORMANCE OR TRANSMISSION OF ANY SERVICES OR THE OBLIGATIONS OF SERVICE PROVIDER PURSUANT TO THE CUSTOMER AGREEMENT OR SERVICE ORDER.
FURTHERMORE, SERVICE PROVIDER WILL NOT BE LIABLE FOR ANY COSTS, EXPENSES, USAGE CHARGES, CLAIMS OR DAMAGES ARISING OUT OF OR RELATED TO: (A) CUSTOMER’S FAULT, NEGLIGENCE OR FAILURE TO PERFORM, INCLUDING CUSTOMER’S BREACH OF THE CUSTOMER AGREEMENT; (B) CLAIMS AGAINST CUSTOMER BY ANY OTHER PARTY (EXCEPT FOR CLAIMS SUBJECT TO INDEMNIFICATION); (C) ANY ACT OR OMISSION OF ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO, ANY SERVICE PROVIDER UTILIZED BY CUSTOMER; (D) FRAUD (E) ANY UNAUTHORIZED USE OR ACCESS OF THE SERVICES, EQUIPMENT OR SYSTEMS, OR (F) EQUIPMENT OR SERVICES FURNISHED BY A THIRD PARTY OR CUSTOMER.
CUSTOMER UNDERSTANDS AND AGREES THAT SYSTEMS, SERVICES, PRODUCTS OR EQUIPMENT THAT ARE MADE AVAILABLE, OR HAVE ACCESS TO, THE INTERNET ARE INHERENTLY INSECURE, PARTICULARLY AGAINST MOTIVATED INDIVIDUALS, AND SERVICE PROVIDER SHALL HAVE NO OBLIGATION OR LIABILITY FOR ANY BREACH OR OTHER UNAUTHORIZED ACCESS, INCLUDING FIREWALLS OR OTHER SECURITY MEASURES OR EQUIPMENT
1.17 Property & Personal Injury Indemnity. Each Party will indemnify and defend the other Party, its directors, officers, employees, agents and their successors from and against all third party claims for damages, losses, or liabilities, including attorneys’ fees, arising directly from performance of the Customer Agreement or any Service Order and relating to personal injury, death, or damage to personal property that is alleged to have resulted from the negligent or willful acts or omissions of the indemnifying Party or its subcontractors, directors, officers, employees, or agents. Customer will further indemnify and defend Service Provider from and against all third-party claims for damages arising from or related to the use or misuse of the Services by Customer.
1.18 Force Majeure. Neither Party will be responsible for any delay, interruption, or other failure to perform under the Customer Agreement or any Service Order due to acts beyond its control including, without limitation: Acts of God (e.g., natural disasters, lightning); wars, riots, terrorist activities, pandemics (COVID-19 and similar) and civil commotions; inability to obtain equipment from third party suppliers; cable cuts by third-parties, a LEC, ILEC, CLEC or other service provider and service provider activities, and other acts of third-parties; explosions and fires; embargoes, strikes, and labor disputes; and laws, orders, rules, regulations, directives, or actions of any government authority. The Party claiming relief under this Section shall promptly notify the other in writing of the existence of the force majeure event relied on and shall be excused on a day-by-day basis to the extent of such delay, interruption or interference until the cessation or termination of said force majeure event. Notwithstanding the forgoing, nothing herein shall be deemed to release Customer from liability for timely payment for Services provided, including charges resulting from fraudulent use of the Services by Customer or any third party.
1.19 Non-Disclosure and Records Retention. Both Parties agree to maintain at their principal place of business for three (3) years from the date of their preparation, complete and accurate records of their business conducted pursuant to the Service Order(s) or the Customer Agreement. Service Provider will keep all Customer information confidential except to the extent necessary to perform the work authorized by the Customer under the Customer Agreement or any Service Order, or as otherwise required by law. Service Provider shall have the right to conduct periodic audits of any relevant Customer data or documentation as is reasonably necessary to confirm compliance with the Customer Agreement or any Service Order. All information which Customer shall acquire during the term of the Customer Agreement concerning the business affairs of Service Provider shall be held by Customer in trust to Service Provider, its successors and assignees, and Customer shall have an absolute duty to maintain in confidence such knowledge or information and prevent disclosure to others. Customer agrees that all such information concerning the business affairs of Service Provider constitutes trade secrets of Service Provider. All such information and material shall remain the sole property of Service Provider and Customer shall return such property, without keeping copies, within ten (10) days of the termination or expiration of the Customer Agreement for whatever reason. Customer further agrees that any violation or threatened violation of any provision of this paragraph shall cause immediate and irreparable harm to Service Provider and, in such event, an injunction restraining Customer from violation may be entered against it in addition to any other remedy available to Service Provider.
1.20 Notices. Notices to Customers may be sent electronically through Customer Console. Notices to Service Provider all be sent through Customer Console or directly to Service Provider. Notices required to be sent to SecurEdge Provider must be submitted in writing to the address shown below. The notice is effective (a) 3 days after being sent by certified or registered mail return receipt requested, or (b) the next business day after being sent via overnight courier.
Secure Edge Networks, Inc.
Attn: Legal Dept.
2459 Wilkinson Blvd.
Charlotte, NC 28208
1.21 Acceptable Use of the Services. All use of any Service provided by Service Provider shall comply with Service Provider’s Acceptable Use Policy (“AUP”) as set forth on the Service Provider website at https://legal.securedgenetworks.com/aup. Customer agrees to defend, indemnify and hold harmless SecurEdge and Service Provider, its affiliates, and contractors from any and all liabilities, costs and expense, including reasonable attorneys’ fees, arising from or related to any use of the Service. Any violation of the AUP or conduct that SecurEdge, in its reasonable discretion, believes may subject SecurEdge or Service Provider to civil or criminal litigation or liability, charges and/or damages will be considered to be a breach of the Customer Agreement for which Service Provider may, in addition to any other available remedies, suspend or terminate any Service. If Service Provider suspends any Service pursuant to this Section, Service Provider may require a reinstatement fee in order to resume Service.
1.22.1 Provided by Customer. Except to the extent that equipment is expressly ordered by Customer, or included in any Service, Customer is solely responsible for selecting, supplying, installing, operating, maintaining, and the compatibility of any Customer Premise Equipment (“CPE”), facilities and/or other materials used in connection with the Service, including any related applications, systems and software. Service Provider shall have no liability for Customer’s Equipment or Customer’s failure to maintain or meet requirements applicable to Customer’s Equipment. Under no circumstances shall Service Provider be responsible or obligated to make any changes to its equipment, operations, network or systems to accommodate non-approved Equipment. Any Equipment provided by Customer shall meet all industry standards and technical requirements for compatibility for underlying provider(s) of Service Provider. Customer will: (1) ensure that all CPE and any related applications, systems and software used with or connected to the Services, comply with all applicable laws, licenses, industry standards and reasonable instructions provided by Service Provider; and (2) understand that if any CPE or related applications, systems, or software impairs Customer’s use of the Services, Customer will remain liable for applicable charges and any otherwise applicable service level agreement will not apply.
1.22.2 Provided by Service Provider. Service Provider, or its underlying vendors may, if expressly ordered by Customer, provide Customer Premise Equipment (“CPE”) as part of the Services. Service Provider’s responsibility for premise equipment provided by it to Customer will only be as expressly set forth in this herein. Customer acknowledges that CPE may be removed or changed by Service Provider or its underlying vendors as required to provide Service to Customer. Customer shall reasonably cooperate to provide access to such CPE as requested by Service Provider. Customer shall not sell, transfer, lease, encumber or assign any part of the CPE. Further, Customer shall not remove, attempt to repair or otherwise tamper with CPE, nor shall it permit others to do so. If any of the foregoing occur, Customer will have committed a material breach of the Agreement and shall be responsible for payment of service charges in the event maintenance, inspection, repair or replacement of the CPE is required. Customer shall be responsible for fire, theft or other casualty at Customer’s locations. Service Provider or Service Provider’s underlying vendors retain title to all CPE provided as part of a Service.
1.22.3 Return of CPE. Upon expiration of the Service Term of a Service Order or of the Customer Agreement, Customer shall, within twenty (20) days after such expiration or termination, return CPE to Service Provider or its underlying vendors as directed by Service Provider. If Customer fails to return the CPE in the time period outlined within this section, or returns the equipment in a damaged condition (reasonable wear and tear excepted), Customer shall pay Service Provider the replacement cost of any such CPE.
1.22.4 Shipping, Risk of Loss and Acceptance. Billing and shipping address must be in Service Provider’s authorized service area. Equipment will be shipped to the address designated on Customer’s order. Title and risk of loss pass to Customer, and acceptance occurs, upon delivery to Customer or Customer’s agent at the address designated on Customer’s order. Service Provider may charge Customer for shipping.
1.23 Underlying Service Providers. Customer understands and agrees that Service Provider may use underlying service providers (“USP’s”) to perform some or all of the Services provided under a Service Order or the Customer Agreement. Any such USP shall be a third party beneficiary to the Customer Agreement and the Service Order. In the event of Customer breach, including failure to make full payment for Services, USP’s retain the right to pursue any or all legal actions available to Service Provider directly against Customer for such breach, and Customer hereby waives any defense against such legal action based upon the identity of the USP or lack of privity.
1.24 Choice of Law/Venue. The laws of the State of North Carolina (excluding any laws that direct the application of another jurisdiction’s law) govern all matters arising out of or relating to the Customer Agreement and all of the transactions it contemplates (including Service Orders), including its validity, interpretation, construction, performance, and enforcement. Litigation concerning the Customer Agreement must be commenced in either the North Carolina State courts or U.S. federal courts located in Charlotte, North Carolina and each Party consents to jurisdiction therein. If any part of the Customer Agreement is held by any court or administrative agency to be prohibited by any law, regulation or rule applicable to the Customer Agreement, the rights and obligations of the Parties shall be construed and enforced to the greatest extent allowed by law, or if such part is totally unenforceable, as if the Customer Agreement did not contain that particular part. For the purposes of construing any term of the Customer Agreement, it will be deemed to be a mutually drafted document and no term shall be construed for or against either Party based upon the identity of the drafter of that provision. Each Party hereby waives its right to trial by jury, and any trial on any matter arising out of or related to the Customer Agreement shall be a bench trial (i.e. tried before a judge and not a jury).
1.25 Waiver. The terms, covenants, representations and warranties of the Customer Agreement and any Service Order may be waived only by a written instrument executed by the Party waiving compliance. The failure of either Party at any time to require performance of any provision hereof shall not affect the right at a later date to enforce the same. No waiver by either Party of any breach of any term, covenant, representation or warranty contained in the Customer Agreement or any Service Order, whether by conduct or otherwise, in any one or more instances, shall be deemed to be construed as a further or continuing waiver of any such breach or the breach of any other term, covenant, representation or warranty of the Customer Agreement or any Service Order.
2.0 TERMS APPLICABLE TO DEDICATED INTERNET ACCESS (DIA)
2.1 Description of Services. Service Provider Dedicated Internet Access Service consists of: (i) a dedicated, high-speed network connection between Customer’s premises and an Internet Service Provider; and (ii) an IP port rated at the appropriate speed as indicated in the Exhibit or the applicable Service Order; and (iii) routing services, based upon the Transmission Control Protocol/Internet Protocol (TCP/IP), which will afford Customer Internet connectivity. Service Provider will, on Customer’s behalf and written request, use commercially reasonable efforts to perform the following as part of the Dedicated Internet Access Services: (i) order local access facilities connecting Customer’s premises to an ISP point-of presence; and/or (ii) secure Internet Protocol address space for Customer.
2.2 Flat Rate Ports and Minimum Port Commitments (excluding DSL, Integrated T1/PRI and Dynamic T1/PRI Service). Pricing is per port and billed in monthly recurring charges. Customer may choose a flat rate bandwidth port or a partial port with a minimum bandwidth. Customer shall pay the MRC associated with the flat rate port or the minimum bandwidth port monthly. Customer may not decrease the applicable pricing bandwidth (e.g. decrease from DS-3 to DS-1, etc.) to a lower bandwidth during the Service Term.
2.3 International Circuits. In no event shall Customer be responsible for payment of charges that are invoiced more than six (6) months after the close of the billing month in which the charges were incurred.
2.4 DEDICATED INTERNET ACCESS SERVICE LEVEL AGREEMENT (“SLA”)
2.4.1 This SLA is effective as of the first day of the second month after initial installation of Dedicated Internet Access Services.
2.4.2 Network Availability. Network Downtime is when Customer is unable to transmit and receive data and Service Provider records such failure in the Service Provider trouble ticket system. Downtime is deemed to begin when Service Provider verifies the stated trouble in the trouble ticket. Downtime is deemed to terminate upon the closing of the same trouble ticket or the termination of the Downtime less any additional time Service Provider is waiting for Customer to provide additional information or premise testing. For Service Provider’s third party (TP) Domestic On-Net Service the goal is one hundred percent (100%) availability.
|Domestic On-Net||Each hour of downtime within a business day qualifies Customer for service credit equal to one day's charges pro-rated from the MRC.|
2.4.3 Latency. Service Provider’s Latency Guarantee is based upon a monthly network-wide average round-trip transmission. For Service Provider’s Third Party (TP) Domestic On-Net Service the goal is sixty-five (65) milliseconds (ms) or less. Each calendar month Service Provider TP provider shall measure latency by averaging sample measurements taken between all relevant Point-of-Presences (POP) Latency is calculated as follows:
(Roundtrip Delay for POP-POP trunks) = Latency
Total Number of POP-POP trunks
|Domestic On-Net||For any failure to meet the Latency Guarantee in any calendar month, Service Provider will give Customer a service credit in an amount equal to the pro-rated charges for one day of the MRC.|
2.4.4 Packet Delivery. Service Provider’s Packet Delivery Guarantee is based upon a measurement of packets delivered between relevant POPs. Packet Delivery is measured on an ongoing basis by Service Provider’s TP provider to determine a consistent monthly average. For Service Provider’s TP Domestic On-Net Service, the goal is ninety-nine percent (99%).
|Domestic On-Net||For any failure to meet the Packet Delivery Guarantee in any calendar month, Service Provider will give Customer a service credit in an amount equal to the pro-rated charges for one day of the MRC.|
2.4.5 Customer Responsibilities. In order for Customer to be eligible for credits under this SLA, Customer must be in good standing with Service Provider and current in its obligations. In order to obtain a credit, Customer must notify Service Provider’s Customer Service department within four (4) calendar days of the Network Availability event(s) giving rise to the credit occurred and for all other Guarantees Customer must notify Service Provider’s Customer Service department within two (2) business days after the end of the month in which the event(s) giving rise to the credit occurred. Credits are not applied automatically and will be issued only upon Customer’s timely request. If Customer fails to notify Service Provider within the above timeframe, Customer will have waived its rights to any credits for that month.
2.4.6 Remedies. A credit will be applied to the month in which the event giving rise to the credit occurred. The credits will apply to the MRC’s of the Affected Service (the service that fails to meet the applicable goal). In no event will the total credit for the Affected Service, in the aggregate for all credits issued in one (1) month exceed the total MRC charges for the Affected Service for that month. Cumulative credits in any one month must exceed twenty-five dollars ($25.00) to be issued. The provisions of this SLA state Customer’s sole and exclusive remedies for Service interruptions or Service deficiencies of any kind whatsoever.
2.4.7 Exceptions. Credit shall not apply to events outside the control of Service Provider, including but limited to the following (i) power loss; (ii) failure of equipment or systems provided by Customer or any third party (not under the direction of Service Provider); (iii) other connectivity or equipment failure at Customer’s premises; (iv) any Force Majeure event; (v) scheduled Service maintenance, alteration or implementation an (vi) the acts or omissions of Customer, its employees, contracts or agents.
3.0 TERMS APPLICABLE TO DSL & CABLE INTERNET
3.1 Service Provider Digital Subscriber Line (DSL) consists of an internet connection using an existing RBOC/ILEC telephone line and digital transmission facilities from one of several underlying carriers. Unless specifically priced as a “stand alone” DSL line, DSL is provided over an access line that Customer is responsible for keeping active and paying for separately.
3.1.1 DSL Service is not available if any type of alarm service runs over the telephone line
3.1.2 Customer may be responsible for providing, or paying for, Customer Premise Equipment.
3.1.3 For ADSL, Customer acknowledges that the DSL circuit at times may not deliver the full selected upstream and downstream rate of the selected bandwidth. Customer further acknowledges that Service Provider makes no representations, warranties, or guarantees regarding any minimum bandwidth.
3.1.4 For SDSL, Customer acknowledges that if Service Provider cannot provide a DSL circuit at the ordered bandwidth, Service provider will offer the maximum available throughput rate and corresponding bandwidth. Customer understands that it has the right to cancel the order if Service Provider is not able to provide comparable service.
3.2 Service Provider Cable Internet consists of an internet connection using an existing coaxial cable or fiber optic facilities from one of several underlying carriers.
3.2.1 Customer may be responsible for providing, or paying for, Customer Premise Equipment.
3.2.2 For Cable Internet, Customer acknowledges that the service at times may not deliver the full selected upstream and downstream rate of the selected bandwidth. Customer further acknowledges that Service Provider makes no representations, warranties, or guarantees regarding any minimum bandwidth.
3.2.3 For Cable Internet, Customer acknowledges that additional construction costs may be identified during the order and installation process. The Customer must pay those construction costs before the installation process begins. If construction costs are identified, the Customer will have the option to cancel the order for the affected site without penalty.
3.3 General Broadband Disclosures. Cable services are typically delivered to the Customer's chosen location if within reasonable distance. Telco based services are delivered to the property telco Minimum Point of Entry or telco closet. It is the Customer's responsibility to provide access to secure areas, to request any additional wiring beyond the telco installation point and complete cross-connects to customer premise equipment. This is especially critical in mall installations. Pricing is budgetary and service is subject to network availability at the service address. Final loop qualification will be done at the time of order and may come back as "unavailable." No penalties will apply if service is deemed "unavailable" or if construction costs are unacceptable to the Customer. Cable Internet pricing in Spectrum service areas is for new qualifying business service locations. Orders for service at existing cable internet locations may incur higher pricing.
4.0 TERMS APPLICABLE TO WIRELESS INTERNET SERVICE
4.1 Description of Services. Wireless Internet Service consists of an Internet connection using wireless data networks and digital transmission facilities from one of several underlying carriers and is defined by the Federal Communications Commission (“FCC”) as Commercial Mobile Radio Service (“CMRS”), and is subject to FCC rules related to communications through radio transmissions. Machine to Machine or M2M is defined at the transmission of data using Wireless Service between wireless devices and computer servers or other machines or between wireless devices, with limited or no manual intervention or supervision. Wireless Services is defined as each and every radio service provided by Service Provider.
4.1.1 Wireless Internet Service does not support alarm service and should not be used for that purpose.
4.1.2 Customer may be responsible for providing, or paying for, Customer Premise Equipment.
4.1.3 Customer acknowledges that the Wireless Internet Service at times may not deliver the full selected upstream and downstream rate of the selected bandwidth, except as described in an applicable Service Level Agreement (SLA), if any. Customer further acknowledges that Service Provider makes no representations, warranties, or guarantees regarding any minimum bandwidth, service quality or service availability, except as described in the SLA, if any.
4.1.4 Customer acknowledges that if Service Provider cannot provide the Service at the ordered bandwidth, Service provider will offer the maximum available throughput rate and corresponding bandwidth. Customer understands that it has the right to cancel, as provided in the SLA, the order if Service Provider is not able to provide acceptable service level.
4.1.5 Customer may incur costs during the installation and testing process. Customer shall pay those non-recurring costs, even if the Service is cancelled by Customer.
4.1.6 The term for each Service begins on the date that Wireless Service is activated for that line and continues for the term selected by Customer. Early Termination for any M2M service shall be as provided by in Service Order or Service Terms, but in any case, shall not be less than $75.00 per line.
4.2 Data Use. Plan Subscriptions are offered in allotments of MB (Mega Bytes) or GB (Giga Bytes) amounts. That amount is the total volume of data that may be used during the billing period before Data Overages are incurred. Data Overages charges are incurred for each MB (Mega Byte) above Customer’s Plan Subscription allotment. It is the responsibility of the Customer to control and monitor its data usage. The monthly recurring charge (“MRC”) is billed as a line charge per SIM, beginning upon activation of the applicable SIM, and cost per megabyte (“MB”) or gigabyte (“GB”) as determined by the plan provisioned at the time of Service activation. Prorations on the MRC apply to partial month billing. Usage only charges will not be prorated due to the nature and definition of Usage. Customer shall be solely responsible for all charges related to any overages, including but not limited to, overages caused by unauthorized, unintended, excessive or unplanned usage.
4.2.1 Approximate Data Usage Examples (for general estimation purposes only, Customer Usage may vary substantially)
Activity Approximate Size
Email (1 text page – no attachment) 10KB
Word Document (5 text pages) 70KB
Simple Web Search 400KB
Digital Photo (low resolution) 500KB
Power Point Presentation (20 Pages) 5MB
Digital Photo (high resolution) 5MB
Software Updates 200MB to 500MB
Voice Call with Video (VoIP) 260 MB per hour
Audio Streaming 650 MB per hour
Video Streaming 2000 MB per hour
4.3 Connection Requirements. Data sessions require data capable equipment and must be placed within data service areas. A data session is inactive when no data is being transferred, and may seem inactive while data is actively being transferred to a device, or seem active when actually cached and not transferring data. Customer MUST DISCONNECT the session to ensure that session disconnects and charges cease, otherwise data sessions may automatically reinitiate without pressing “Send” or “Connect”. Customer must maintain virus and malware protection when accessing the service and is responsible for all data sent and received, including “overhead” (data that is in addition to user-transmitted data, including control, operational and routing instructions, error checking characters as well as retransmission of user-data messages that are received in error) whether or not such data is actually received. Service Provider will not be liable for problems receiving Service, including those resulting from the Customer’s device. Service is not available on all devices or areas. Customer shall not use the Wireless Service for remote medical monitoring unless specifically agreed to by the Parties. Such use will require additional terms and conditions.
4.4 Data Usage. Service Provider charges Customer for all data sent or received using our network, including any network overhead associated with content sent or received. Sending or receiving data using a virtual private network (VPN) involves additional VPN overhead for which Customer will be charged. Please note that certain applications or widgets periodically send and receive data in the background, without any action by the user, and Customer will be billed for such data use. Applications may automatically re–initiate data sessions without your pressing or clicking the SEND or connect button. A data session in inactive when no data is being transferred. Data sessions may seem inactive while data is actively being transferred, or may seem active when the data is actually cached and data is not being transferred. Data transfer amounts will vary based on application. If Customer downloads an audio or video file, the file may be downloaded in sections or in its entirety; data charges will apply to the portion downloaded.
4.5 Fair Use of Unlimited Data Plans. Unlimited Data Plans cannot be used for (1) uploading, downloading or streaming music, movies or games, (2) with server devices or host computers including without limitation, Web camera posts or broadcasts, continuous jpeg file transfers, automatic data feeds, telemetry applications, automatic functions or any other machine-to-machine applications, (3) as substitute or back up for private lines or dedicated data connections. Doing so will result in termination of service and an invoice for actual costs of service(s) used. Service Provider reserves the right to terminate service, without notice, if Customer is presumed to be using the Service in a manner prohibited above.
4.6 Megabyte (MB) and Gigabyte (GB) Data Plans. National data usage is rounded to the next full kilobyte at end of each billing cycle. Any unused portion of the data allowance is lost. Equipment will not indicate kilobyte usage.
4.7 International. International data usage is available but may be subject to 90-day payment history with Service Provider. International rates will vary.
4.8 Equipment Location. All Equipment activated on M2M lines at a fixed location must be located by Customer within the areas served by the underlying carrier’s owned and operated network. Equipment activated on M2M lines which are mobile may roam on the networks of the underlying carrier’s roaming partners but shall not be permanently located in the roaming area. When a Customer M2M line is terminated, Customer shall ensure that the Equipment that was activated on the line does not register or attempt to register on the underlying carrier’s network. Customer shall immediately inform Service Provider of all M2M lines and Equipment that are terminated. If terminated equipment continues to attempt to register on the underlying carrier’s network, (i) Customer will incur and shall pay additional charges and fees and (ii) if Customer fails to prevent the terminated equipment from attempting to register within 30 days after notice from Service Provider, Service Provider shall have the right to charge, and Customer shall pay a monthly thirty-five dollar ($35) fee for each unit of terminated equipment until the failure is corrected.
4.9 Use of Wireless Service and Equipment. In order to protect underlying carrier’s network, operations and other end users, Service Provider may suspend or terminate service to affected lines if Customer uses the Wireless Service or Equipment: (a) in an illegal or unauthorized manner; (b) in a manner prohibited by the applicable plan, option, feature or application; or (c) in a manner that has an adverse impact on the underlying carrier’s network, operations or customers. All M2M lines purchased by Customer from Service Provider shall be embedded in an Customer product or service, shall not be resold by Customer and shall be used solely by Customer for wireless connectivity for Customer’s products and or machinery.
4.10 Pricing. The total price is contingent upon final equipment configuration, scope of work and customer credit approval. The total payment does not include property taxes, which will be billed as incurred. On-site installation and integration is based on budgetary estimate. Price may vary by location. LTE Modem capability - add $10 per month per site. Does not include LTE data plan, taxes, shipping or expedite fees, if required.
5.0 TERMS APPLICABLE TO WIRELESS SERVICE
5.1 Plans "Including Equipment". Plans "Including Equipment" include 4G data plan subscription, SIM card, PepLink Max BR1 4G Router capable of automatic failover, includes dual-SIM card for rapid reconfiguration to alternate wireless network if needed during deployment process, management portal for cloud-based device management, monitoring, and reporting, ship configured device to customer site (shipping costs are extra). Optional add-ons: Onsite installation, High-gain antenna, POE Injector, Static IP Address. Taxes and Shipping are extra. Data Overage is $0.036 per MB.
5.2 Plans with "No Equipment". Plans with "No Equipment" include 4G data plan subscription and single SIM card. These plans DO NOT INCLUDE ANY CPE OR ONSITE EQUIPMENT. Optional add-ons: USB Air Card, Static IP Address. Taxes and Shipping are extra. Data Overage is $0.036 per MB.
5.3 Pricing. MRC is billed as a line charge per SIM and cost per megabyte (MB) as determined by the plan provisioned at the time of SIM activation. Service and pricing are subject to availability. Final qualification will be done at time of order and may come back as "unavailable". No penalties will apply is service is deemed "unavailable". Pricing does not include shipping, taxes, fees and other regulatory charges. Quote is in whole, any changes (adds, deletes) will require a new quote request. Unlimited plans do not include roaming. Unlimited Data plans with tiered speeds may incur slower speeds after monthly usage threshold has been met. After a data threshold has been met, SecurEdge may slow the data on that line during periods of network congestion or for the remainder of the billing cycle. Purchaser to pay Non-Recurring Charge for actual shipping and service costs incurred by SecurEdge. Taxes extra.
5.4 Universal Connect Disclosures. Universal Connect VSIM plans are capped by GB monthly consumption. When the service reaches its monthly allowance, it stops passing data. Customer may elect to augment their data plan in one of two ways. Option 1 is to change to a new, higher GB plan. In that case, the plan would be adjusted to the higher plan and the prorations would be for the whole month at the new plan with credits applied for the plan being replaced. Option 2 is to apply a one-time Top Up of additional GB of data. Top-up would be a non-recurring (NRC) charge that will be applied in addition to the customer’s subscribed plan. Disconnection of Universal VSIM plans require sixty (60) days’ notice by the customer.
6.0 TERMS APPLICABLE TO NETWORK OPERATIONS CENTER (NOC) SERVICES
6.1 Underlying Service Provider. Customer understands and agrees that Service Provider may use underlying service providers (“USP’s”) to perform some or all of the NOC Services provided under a Service Order or the Customer Agreement. Any such USP shall be a third party beneficiary to the Customer Agreement and the Service Order. In the event of Customer breach, including failure to make full payment for NOC Services, USP’s retain the right to pursue any or all legal actions available to Service Provider directly against Customer for such breach, and Customer hereby waives any defense against such legal action based upon the identity of the USP or lack of privity.
6.2.1 “Agreement” means together the Service Order, General Terms and Conditions, Service Addendum and the Equipment Schedule.
6.2.2 “Customer” or “Customers” means that party listed as the Customer on the Service Order and their respective successors and assigns.
6.2.3 “Service” or “Services” means those services and products provided or to be provided by NOC Service Provider to Customer under either the MB.LinkSecure™, MB.LinkVPN™, MB.LinkVPNAdvantage™, MB.LinkWatch™, MB.LinkWatchAdvantage™, MB.Link SecureMail ™, or Network Deployment and Management programs as specified on the Service Order and in the Service Description.
6.2.4 “Service Description” means the description of services to be provided by NOC Service Provider and titled “Service Description”.
6.2.5 “Service Order” means the Service Order to which these General Terms and Conditions are attached.
6.2.6 “User” means anyone who uses or accesses any Service ordered by Customer under the Service Order.
6.2.7 “Effective Date” means the date of execution by both parties signing the agreement.
6.3 Minimum Eligible Devices.
6.3.1 Customer is responsible for maintaining the minimum number of committed devices indicated above in this agreement. Eligible devices qualifying towards the commitment are those devices managed and monitored by NOC Service Provider and carrying a monthly recurring management services fee.
6.3.2 Bundled devices such as a router and firewall combination carrying a single monthly recurring charge qualify as a single eligible device. The customer is responsible for the monthly recurring charges associated with the minimum number committed devices. Should the customers eligible devices fall below the MCD agreed upon, NOC Service Provider will bill shortfall penalties equal to the monthly recurring services fee for the device type that was last deactivated or cancelled causing the customer to enter shortfall.
6.4 Responsibilities of the Parties.
6.4.1 NOC Service Provider will provide the Services identified on the Service Order to Customer, subject to the availability of the Services, in accordance with the terms and conditions set forth herein, in the Service Order, as applicable in the Service Description and at the charges specified in the Service Order and pricing summary, consistent with all applicable laws and regulations.
6.4.2 Customer shall at all times comply with all applicable laws, regulations and written and electronic instructions for the use of all Services. NOC Service Provider reserves the right to suspend or terminate affected Services if NOC Service Provider determines that such use does not conform with the requirements set forth in the Service Order or these General Terms and Conditions or in any way interferes with NOC Service Provider’s ability to provide any Services to Customers or others who receives notice from anyone that Customer or Customers use of any Service may violate any laws or regulations. NOC Service Provider’s actions or inaction under this Section shall not constitute review or approval of Customer or Customers use of the Services. NOC Service Provider will use reasonable efforts to provide notice to Customer before taking action under this Section.
6.4.3 Customer agrees to use its best efforts to assist NOC Service Provider in providing any of the Services to Customer, which assistance may include, but not be limited to, granting access to Customer’s facilities and to its computers, software and networking equipment and related facilities as may be necessary for the commencement of the Services and the continued operation and maintenance of all Services.
6.5 Use of Information.
6.5.1 All documentation, technical information, software, business information, or other materials that are disclosed by either party to the other in the course of performing the Services shall be considered proprietary information of the disclosing party, provided such information is in written or other tangible form that is clearly marked as “proprietary” or “confidential” (“Confidential Information”).
6.5.2 Each party’s Confidential Information shall, for a period of two (2) years following its disclosure: (i) be held in confidence by the receiving party; (ii) be used only for purposes of performing the Services (including in the case of NOC Service Provider, the ability to monitor and record transmissions in order to detect fraud, check quality, and to operate, maintain and repair the Services) and using the Services; and (iii) not be disclosed except to the receiving party’s employees, agents and contractors having a need-to-know, or to the extent required by law (provided that prompt advance notice is provided to the disclosing party to the extent practicable).
6.5.3 The restrictions in this Article shall not apply to any information that (i) is independently developed by the receiving party, or (ii) is lawfully received by the receiving party free of any obligation to keep it confidential; or (ii) becomes generally available to the public other than by breach of this Agreement.
6.6 Publicity and Marks. 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 (collectively “Marks”) without the other party’s prior written consent, provided that such consent may be revoked at any time.
6.7.1 Customer acknowledges that all software used in providing the Services will be owned or provided by other parties and that NOC Service Provider is not the owner or manufacturer of such software. Customer further agrees that it will comply with all applicable licenses for the use of all software and will not copy any software or use it in violation of said licenses. Customer shall hold NOC Service Provider harmless and indemnify it against any action, liabilities, damages, and costs associated with or arising from Customer’s use of any software in violation of any license or applicable law.
6.7.2 NOC Service Provider shall not be liable for any defects in any software used in the Services or for the failure of any software to function properly or to perform as described by NOC Service Provider or as advertised by the maker thereof. Customer shall look solely to the software owner or manufacturer for any losses, claims or damages associated with the use of any software relating to the Services or the failure of such software to perform as contemplated.
6.8 Force Majeure. Neither Service Provider nor Customer shall be liable for any delay, failure in performance, loss or damage due to: fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of God, acts or omissions of carriers or Service Provider’s, acts of regulatory or governments agencies, or other causes beyond such party’s reasonable control, whether or not similar to the foregoing, except that Customer’s obligation to pay for charges incurred for Services received by Customer shall not be excused hereby.
6.9 Limitations of Liability.
6.9.1 For purposes of all exclusive remedies and limitations of liability set forth in this Agreement, “NOC Service Provider” shall be defined as Global Linking Solutions, Inc. (“GLS”), its employees, directors, officers, agents, representatives, affiliates, GLSs and business partners; and Customer shall be defined as Customer, Customer’s affiliates, and Customer’s employees, directors, officers, agents, and representatives; and “Damages” will refer collectively to all injury, damage, liability, loss, penalty, interest and expense incurred.
6.9.2 EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDIES FOR ANY DAMAGES CAUSED BY ANY SERVICE DEFECT OR FAILURE, OR FOR OTHER CLAIMS ARISING IN CONNECTION WITH ANY SERVICE OR OBLIGATIONS UNDER THIS AGREEMENT SHALL BE (i) FOR BODILY INJURY OR DEATH TO ANY PERSON, OR REAL OR TANGIBLE PROPERTY DAMAGE, NEGLIGENTLY CAUSED BY A PARTY, OR DAMAGES ARISING FROM THE WILLFUL MISCONDUCT OF A PARTY OR ANY BREACH OF ARTICLES 4 OR 5, THE OTHER PARTY’S PROVEN DIRECT DAMAGES AS DETERMINED BY A COURT OF COMPETENT JURISDICTION NOT TO EXCEED PER CLAIM (OR IN THE AGGREGATE DURING ANY TWELVE (12) MONTH PERIOD) AN AMOUNT EQUAL TO THE TOTAL NET PAYMENTS MADE BY CUSTOMER FOR THE AFFECTED SERVICE DURING THE THREE (3) MONTHS PRECEDING THE MONTH IN WHICH THE DAMAGE OCCURRED; (ii) FOR DEFECTS OR FAILURES OF SOFTWARE, THE REMEDIES OBTAINED FROM THE MANUFACTURER OF SUCH SOFTWARE. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S RESPONSIBILITY FOR THE PAYMENT OF ALL PROPERLY DUE CHARGES UNDER THIS AGREEMENT.
6.9.3 NEITHER PARTY TO THIS AGREEMENT SHALL 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 OF ANY KIND OR INCREASED COST OF OPERATIONS.
6.9.4 NOC SERVICE PROVIDER ALSO SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATING T0 INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; SERVICE INTERRUPTIONS OR LOST OR ALTERED MESSAGES OR TRANSMISSIONS; OR, UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF CUSTOMER’S, USERS’ OR THIRD PARTIES’ APPLICATIONS, CONTENT, DATA, RECORDS, PROGRAMS, INFORMATION, NETWORK OR SYSTEMS.
6.9.5 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NOC SERVICE PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. CUSTOMER SHALL LOOK SOLELY TO THE MANUFACTURER OF ANY EQUIPMENT OR SOFTWARE FOR ANY DAMAGES CAUSED BY THE MALFUNCTION OR FAILURE OF SUCH EQUIPMENT OR SOFTWARE.
6.9.6 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY: (i) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE; AND (ii) WHETHER OR NOT DAMAGES WERE FORESEEABLE. THESE LIMITATIONS OF LIABILITY SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
6.10 The MB.LinkVPN™ and the MB.LinkSecure™ Services providing firewall security services which Customers may order, are intended for use in conjunction with the NOC Service Provider approved internet connections to Customer’s network. NOC Service Provider does not monitor other additional internet connections which may be maintained by Customers unless MB.LinkVPN™ or MB.LinkSecure™ Services are ordered for the connections in question. Customer acknowledges and understands that multiple internet connections, unless protected by an internet security product or service, may significantly decrease Customer’s overall network security level. To the extent Customer deems necessary, Customer will implement security procedures and controls necessary to limit access to the Service and Customer will maintain facilities and procedures external to the Service for reconstruction of lost or altered files, data, or programs. NOC SERVICE PROVIDER, THROUGH THE MB.LINKVPN™ OR MB.LINKSECURE™ SERVICES DOES NOT GUARANTEE CUSTOMER’S NETWORK SECURITY OR PREVENT THE OCCURRENCE OF SECURITY INCIDENTS. NOC SERVICE PROVIDER ACCEPTS NO RESPONSIBILITY, NOR ANY LIABILITY FOR THE SECURITY OF CUSTOMER’S ELECTRONIC OR COMPUTER ENVIRONMENT, WHETHER OR NOT NOC SERVICE PROVIDER HAS INSTALLED ANY INTERNET OR NETWORK SECURITY EQUIPMENT OR SERVICE.
6.11 General Provisions
6.11.1 Any supplement, 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 shall not operate as a waiver of any other breach of this Agreement.
6.11.2 This Agreement may not be assigned by either party without the prior written consent of the other, except that either party may, without the other party’s consent, assign this Agreement to a present or future affiliate or successor, provided that any such assignment by Customer shall be contingent upon NOC Service Provider determining the assignee to be creditworthy and in compliance with any eligibility criteria for the Services. NOC Service Provider may subcontract work to be performed under this Agreement but shall retain responsibility for all such work subject to the terms of this Agreement.
6.11.3 If any portion of this Agreement is found to be invalid or unenforceable, the remaining provisions shall remain in effect and the parties shall promptly negotiate to replace invalid or unenforceable portions that are essential parts of this Agreement.
6.11.4 Any legal action arising in connection with this Agreement must begin within two (2) years after the cause of action arises.
6.11.5 All notices under this Agreement shall be in writing and either mailed by certified or registered mail, postage prepaid return receipt requested, sent by express courier or hand delivered and addressed to each party at the address set forth on the Service Order or such other address that a party indicates in writing to the other party.
6.11.6 State law issues concerning construction, interpretation and performance of this Agreement shall be governed by the substantive law of the State of North Carolina, excluding its choice of law rules. The United Nations Convention on Contracts for International Sale of Goods shall not apply. All claims and actions by any party hereto relating to this Agreement shall be brought and maintained in the courts located in Mecklenburg County, North Carolina.
6.11.7 This Agreement does not provide any third party with any remedy, claim, liability, reimbursement, cause of action or other right or privilege.
6.11.8 The respective obligations of Customer and NOC Service Provider, which by their nature would continue beyond the termination or expiration of this Agreement, including, without limitation, the obligations regarding confidentiality, publicity and Marks, and limitations of liability, shall survive termination or expiration of this Agreement.
6.12 THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SERVICES. THIS AGREEMENT SUPERSEDES ALL PRIOR AGREEMENTS, PROPOSALS, REPRESENTATIONS, STATEMENTS OR UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, OR THE RIGHTS AND OBLIGATIONS RELATING TO THE SERVICES. THIS AGREEMENT SHALL NOT BE CONTRADICTED, OR SUPPLEMENTED BY ANY WRITTEN OR ORAL STATEMENTS, PROPOSALS, REPRESENTATIONS, ADVERTISEMENTS, OTHER THAN THE SERVICE ORDER AND APPLICABLE SERVICE DESCRIPTION.
6.13 Managed Service Deployment
6.13.1 Project Management. The NOC Service Provider Project Manager shall be the primary interface with the Customer Project Manager.
6.13.2 NOC Service Provider Project Management responsibilities include:
Serve as the primary interface to the Customer organization.
Coordinating the schedules with the Customer. NOC Service Provider is responsible for building a Project Timeline and drafting and submitting the installation schedules to the Customer via hardcopy or electronic format. Customer and NOC Service Provider will mutually agree to the Project Timeline.
Functioning as the single point of contact for escalation issues that may arise with the Customer.
Participating in, and sometimes leading, status meetings regarding the project. The Customer or NOC Service Provider can initiate these meetings.
Provide, at the Customer’s written or oral request, status updates as to the progress of the Services provided under this Master Agreement. Updates will be provided via email or telephone conversations.
Implementation of mutually agreed upon processes between The Customer and NOC Service Provider for the internal management of schedules inherent to the Services provided in this Master Agreement e.g., scheduling of installation dates. Please reference the Change Control Process.
Managing Test and Turn-up activity and coordination of Transport Service Vendor(s) and Equipment provider(s) associated with Equipment and Circuit Installation.
Develop and maintain an action items and issues list.
6.13.3 Equipment Configuration
184.108.40.206 NOC Service Provider will receive Firewall appliances from Transport Service Vendor to a remote staging facility for prestaging, configuration, and testing prior to site deployment. NOC Service Provider will ship pre-staged and configured Routers, Firewalls and Network Ethernet Switch appliances via ground to the remote site. The Customer is responsible for all nonrecurring charges.
220.127.116.11 The NOC Service Provider Project Manager will verify Equipment arrival at the Customer Site before scheduling the installation method, and test and turn up.
18.104.22.168 A NOC Service Provider technician will be responsible for working with the customer supplied remote site resource to assure proper operation of the Equipment and access to the NOC Service Provider NOC for ongoing management and monitoring. NOC Service Provider remote technician will be responsible for making any changes to the Customer headquarters Equipment configuration to assure working operation of the remote site.
6.13.4 Assessment and Design
22.214.171.124 The Assessment and Design Services for this Project will consume approximately xx hours of NOC Service Provider Engineering Time, during which time NOC Service Provider will work with the Customer to complete the following:
Assign NOC Service Provider PM and NOC Service Provider Design Engineers
Project planning with communications of cadence
NOC Service Provider
Review high level design
Discuss and record operations and functional operations
NOC Service Provider will develop a detail functional design detailing variables, use requirements and expectations.
NOC Service Provider will develop the configurations
NOC Service Provider will develop and present the implementation plan and configuration expectations for operation.
Move to Phase 2 – Configuration and Setup
6.13.5 Configuration and Setup
126.96.36.199 The Configuration and Setup phase of this Project will require xx hours of Engineering Support for the NOC Service Provider to utilize the information gathered in the Design Services to develop the configuration and apply the configuration to the devices. NOC Service Provider will work with OEM Sales Engineers to confirm configuration meets design expectations including the following:
Configuration Command line or attribute-based build according to device manufacture and function.
Firmware standardization to most stable release
Collaborate on the acceptance of Traffic into and through the Data Center with the Customer that will be configuring the Firewall service.
Collaborate on the configuration of Customer provided security policy related elements of the Unified Threat Management capabilities of the Fortigate Firewall.
6.13.6 Installation and Feet on the Street ("FOS")
188.8.131.52 Customer Setup:
Building of Customer Structure in Monitoring and Ticketing Systems
Building and Deployment of customized monitoring tool
184.108.40.206 On-Site Installation (US Domestic Only):
220.127.116.11.1 Equipment Staging and Configuration
Receipt of equipment from Customer or directly from Customer’s or vendor procuring equipment at NOC Service Provider staging facility in the US
Staging, configuration, testing performed at NOC Service Provider facility
Equipment is confirmed received by local contact
18.104.22.168.2 NOC Service Provider Contracted Onsite Technician Services (US Only)
On-Site engineering turn-up support will be scheduled with Customer point of contact
On-site technician will unpack and install the equipment at the Customer locations.
Optionally extend the inside wiring for the circuit Demarcs
Connect equipment to the Customer’s network
Call carrier support to assist in circuit test and turn up.
Validate operation from Head End LAN interface to Remote end LAN interface
Turnover of management services to Network Operations Facility
22.214.171.124.3 Other OPTIONAL Installation Services:
Equipment Staging and Configuration
Receipt of equipment from Customer or directly from Customer’s vendor procuring equipment at NOC Service Provider staging facility in the US
Staging, configuration, testing performed at NOC Service Provider facility
Ship staged Equipment to Customer premises in the US with Customer provided local Customer contact
Equipment is confirmed received by local contact
Remote Telephone based Technician Services
Remote engineering turn-up support will be scheduled with local Customer point of contact.
Guided installation procedure will be completed by a remote NOC Service Provider engineer and the Customer point of contact
NOC Service Provider technician will call carrier support to assist in circuit activation.
NOC Service Provider will validate operation from Head End LAN interface to Remote end LAN interface
Turnover of management services to Network Operations Facility
Remote Telephone based Technician Services
Remote engineering turn-up support will be scheduled with local Customer point of contact.
Guided installation procedure will be completed by a remote NOC Service Provider engineer and the Customer point of contact
NOC Service Provider technician will call carrier support to assist in circuit activation.
NOC Service Provider will validate operation from Head End LAN interface to Remote end LAN interface
Turnover of management services to Network Operations Facility
6.13.7 Takeover Services
126.96.36.199 This installation service is used for existing devices deployed and operational inside the customer network. These devices are considered to be configured properly and do not require additional configuration support at the time of takeover. This deployment method assumes the Customer is capable of providing all the necessary data required to assume management control. This data, in detail, will be requested during transition via NOC Service Provider provided data gathering forms. If data is inaccurate or not provided in a timely fashion, delays in Day II incident management may occur. This process will have the following functions performed to assume full management control:
Collect logical system information
Collect physical system information
Collect maintenance contract and support information
Acquire Letter of Authorization (LOA) authorizing access to supporting vendors. (i.e., Cisco SMARTnet)
Collect installation and configuration setup documentation
Review Support Requirements
Document service environment and requirement
Document ticket procedures, management, and best practices in NOC Service Provider support knowledge database
Define MACD interactions
Provide MACD submission documentation
Acquire authorized users/contacts
Change local passwords
Subject remote devices to NOC Service Provider TACACS
Confirm log or other security related visibility by other entities is functional
Add NOC Service Provider Community string if not already in deployment configuration
188.8.131.52 Test and Turn-up. Following installation, NOC Service Provider shall manage the following Test and Turn-Up functions applicable to each Site after the Equipment installation.
Test to confirm that the Circuit Demarcation Point has connectivity to the network.
Test and confirm that the Inside Wiring for Demarc Extension is operational.
Confirm that Equipment is properly installed and operational.
After successful Installation and Turn-Up of the Site, the NOC Service Provider Project Manager shall obtain a signoff from the Customer Project Manager on a Site Acceptance Form, provided to the Customer.
184.108.40.206 Site Completion Date. NOC Service Provider must update the customer with the Site completion date. Note that payment for Services is based upon Site installation.
6.14 Managed Services Description. NOC Service Provider will provide 24x7x365 Management, Monitoring, and Reporting Services from a NOCs in Charlotte, NC and Knoxville, TN. NOC Service Provider will provide virtual collector hardware (a NOC Service Provider-owned NOC system) that will connect to the customers network for remote monitoring, alerting and trouble support. This tool will be sized according to the volume of managed assets within the scope and be aligned to charges within the pricing schedule. The system will collect critical Customer network information that will be passed to the NOC. NOC Service Provider will provide the following services for managed devices.
6.14.1 Issues, questions, or requests for assistance related to managed devices are made to the NOC Service Provider NOC on a 24 x 7 basis by Customer-designated points of contact. Where possible, problems and incidents will be mitigated remotely by NOC Service Provider technicians.
6.14.2 A “Trouble Ticket” is defined as an individual incident report. The Trouble Ticket begins when NOC Service Provider has acknowledged and validated a problem impacting the Customer’s device. A Trouble Ticket is deemed “Resolved” when the Incident has been addressed and the service has been restored, at which time the Trouble Ticket is closed. NOC Service Provider provides 24 x 7x 365 problem assistance excluding the periods for maintenance.
6.14.3 Infrastructure Management. NOC Service Provider will provide management of the device, including scheduling upgrades and maintaining availability of the assets and network connections.
6.14.4 Fault Management. NOC Service Provider will proactively monitor Customer's managed device(s) every five (5) minutes, 7x24 via API (Application Program Interface), SNMP (Simple Network Management Protocol) Poll, Traps, and/or ICMP Ping according to OEM capability and need. If a managed device fails to respond to a series of requests sent every minute, if three (3) consecutive series fail, a trouble event for a down device is generated by the NOC Service Provider management systems. NOC Service Provider will email Customer designated contact(s) for notification of trouble incident. As network issues are identified, the Customer may specify alternative conditions to adjust object thresholds and other components for identification of fault management incidents. NOC Service Provider will work with the Customer and applicable transport service provider to resolve the circuit issues. Adjustments to intervals faster than every five (5) minutes may incur additional charges.
Note: If the Fault is hardware-related, target resolution time is dependent on the selected hardware replacement plan for the affected Supported Device(s). The response time listed below will be on hold until the hardware Fault resolution is completed.
|Trouble Tickets will be classified according to the following||Definition||Update Interval||Target Resolution Time|
A fault or outage or loss-making or catastrophic event or Top or High Impact and High Urgency. severely impacts one or more business critical processes and No immediate resolution, interim restoration, or workaround. Significant degradation or system failure caused outage at a site is "Critical".
updated every 1 hour or as pertinent status is available within the hour interval.
Within 4 hours
A fault or outage that is a partial loss or High Impact and Medium Urgency, Medium Impact and High Urgency, or Top Impact and Low Urgency. degradation of the service without affecting severely business. An Emergency Change or a Normal Change may require and where there is no automatic and equivalent interim restoration of services
updated every 2 hours or as pertinent status is available
Within 24 hours
A fault or outage affecting a single user, non-critical department but that the data service is able to support communications and business processes are not interrupted.
Every 2 workdays or as pertinent status is available.
Within 5 business days
A fault that does not cause any loss or degradation of service at a site but that requires corrective action or preventative maintenance at a pre-scheduled time.
Every 4 workdays or as pertinent status is available.
Next release, subject to acceptance
6.15 NOC Service Provider Responsibilities
6.15.1 Proactive monitoring facilitates event detection, outage prevention, correlation over incident correction.
6.15.2 Provide network assessment with recommendation of network improvement and performance on latency, packets loss and others, configuration, and utilization monitoring on managed devices.
6.15.3 Detect the behavior and classify them according to severity levels or agreed upon support levels.
6.15.4 Monitor the daily health reports on all managed Service components.
6.15.5 Manage/monitor the availability of managed equipment – polling information of Services and management interface to confirm the active device and process requests. Internet Control Message Protocol (“ICMP”) echo, Simple Network Management Protocol (“SNMP”) Queries and Application Program Interface (“API”) calls.
6.15.6 Maintain access to remote managed equipment – ensure of reachability of devices from remote networks and validating the filtering, routing of device access from users and others.
6.15.7 Manage/monitor CPU Load utilization – determine proactively the CPU performance from load trending on central processers.
6.15.8 Manage/monitor memory utilization - monitoring of memory usage and general RAM utilization.
6.15.9 Monitoring for Interface Errors: automated reading of errors on the conditions to capture errors for Alerts including Service failure notifications, high buffer/cache misses, software errors and hardware failures.
6.15.10 Manage/monitor interface utilization - collection and trending of traffic levels passing through network interfaces.
6.15.11 Manage/monitor network element health, temperature, Coldstart, Warmstart, linkup, linkdown, fan, power supplies, and other variables as agreed.
6.15.12 Manage/monitor WAN and core LAN uplink/interface/port-status, utilization, and errors
6.15.13 Manage/monitor real-time class of Service usage for managed equipment connected to transport services provided this capability is available through OEM
6.15.14 Manage/monitor packet discard rate
6.15.15 Monitor and Alert on excessive bandwidth usage (e.g., more than 70% load during 60 min), for managed equipment connected to transport services
6.16 Fault Monitoring
6.16.1 The following API or SNMP based alarms will be utilized as global service checks for the managed infrastructure based on OEM (Original Equipment Manufacturer) capabilities:
Validates connectivity to the device. Provides up/down status and extreme latency alarming.
Series of 5 - 16 byte packets every 5 minutes - 3 loss warning, 4 loss critical
API Call or SNMP Poll for monitored individual interfaces for up/down state.
Alarm will generate when monitored interface is down.
Monitors internal temperature of the device, if sustained can cause damage to the hardware.
Alarm at 60C/140F Warning & 80C/176F Critical
Monitors Internal Cooling Fan Status
Alarm at Fan not operating
CPU Load Checks to assure the CPU Utilization is not overloaded in a sustained capacity to assure
Alarm at sustained CPU utilization 90% for at least 5 minutes
This could indicate a software issue such as a bug in the code causing a memory leak, or a hardware issue.
Alarm 80% Warning, 95% Critical
6.16.2 RMM Trouble Incident Management Fault Resolution. RMM Incident Management will help restore normal service operation as quickly as possible. This process isolates events, identifies Incidents and to diagnose and take required actions to resolve. Incidents for managed devices are identified from a continuous process whereby Incidents are logged, tracked, expedited, and resolved. Incidents can be reported via telephone, email or any interface feature which can raise incidents. It is dependent on the valid maintenance and support contract regarding the managed devices and LOA [ Letter Of Agency] in place. This will include to work the Customer to restore normal service operation within agreed-to service levels, initiating standard change management as needed and support and co-ordinate Dispatch remotely.
6.16.3 Trouble Ticketing System Access. Customer will have online access beginning at the start of management of the first device to view all Trouble Tickets opened by NOC Service Provider for all the managed devices for Customer in the Trouble Ticketing Section of U.Connect during the last thirty-six (36) months from the Effective Date. U.Connect will be backed up off-site on a regular basis, but not less than once per week.
6.16.4 Performance Graphing (Requires circuit terminating router). Thirty (30) minute average poll data may be presented in graphical format. The following graphical reports will be made available online via the U.Connect and will be available on a per circuit basis:
Bandwidth utilization by day
Bandwidth utilization by hour
Average utilization by day
6.16.5 Performance Reporting (from firewall asset)
220.127.116.11 NOC Service Provider will poll each managed device via API or SNMP. These polls shall be performed every five (5) minutes, twenty-four (24) hours per day, and seven (7) days per week. The collected poll data will be made available in graphical format ("Performance Reports") and will be accessible online via U.Connect. The data shall be initially stored as five (5) minute average data for a period of twenty-four (24) hours. After twenty-four (24) hours the data will be stored as thirty (30) minute average data for a period of eight (8) days. After eight (8) days, data will be stored as two (2) hour average data for a period of five (5) weeks. After five (5) weeks, the data will be stored as twenty-four (24) hour average data for a period of thirteen (13) months. After thirteen (13) months all Performance Reporting related data will be deleted.
18.104.22.168 Performance Reports will include daily five (5) minute, weekly thirty (30) minute, monthly two (2) hour and yearly twenty-four (24) hour statistics on the following:
Device CPU utilization
6.17 Change Management.
6.17.1 NOC Service Provider will provide a change request form that will be customized from standard templates to meet the specific needs and requirements of the Customer in this engagement. Customer’s requests can be submitted to NOC Service Provider via email 24 hours per day and will be acknowledge the same business day for requests submitted prior to 12pm Eastern. Requests after 12pm Eastern will be acknowledged before 12pm the next business day. MACD’s will be executed within 48 hours of receipt of complete information and is subject to Customer coordination. NOC Service Provider MACD verbiage and execution language and be referenced in sections below for specific details. At acknowledgement, a ticket will be generated notifying NOC Service Provider engineers of the requested change. A NOC Service Provider engineer will complete the change request as defined within the Device Management section defined below. NOC Service Provider requires the MACD to come from authorized Customer contacts only. The expectation is that the authorized requestor has processed the change request through a Customer Change Control Process including a Change Advisory Board (“CAB”), technical architect or other process necessary of ensure the submission, if executed as requested, will produce the expected result. NOC Service Provider does not warrant the technical assurance of the MACD request from the authorized user. The change will be reviewed for completeness, ensure no obvious detriment to the environment will occur if executed, confirmed for the engineer’s ability to execute as requested, executed and the requestor will be engaged to confirm the intended result was produced. If the requestor does not respond within 24 hours, the ticket will be automatically closed with a successful result.
6.17.2 NOC Service Provider will provide one code upgrade (approved by the NOC Service Provider Engineering Team and Customer) per year.
6.18 Device Management
6.18.1 NOC Service Provider will perform Customer requested configuration changes ("MACD") necessary for moves, adds, changes, and disconnects on each Managed Device for the term of this SOW ("Device Management Services"). Major network re-arrangements, defined as those requiring more than fifteen (15) minutes for a NOC engineer to complete and which are not listed below in the Included MACD list below will be chargeable items. These will be considered out of scope and handled via the Change Control Process as defined in this SOW. Upgrading a managed device or replacing a managed device with an equivalent device or a newer version will not change the applicable managed services charge. NOC Service Provider includes one major version update per annual contract term, additional major version upgrades are billable and will be defined via the Change Order process. Customer may request the upgrade throughout the annual cycle, however, if no request is made, NOC Service Provider will review the available OEM IOS versions and make a recommendation to Customer.
6.18.2 Life Cycle Management - Moves, Adds, Changes, Deletes (MACDs)
22.214.171.124 Simple Moves, Adds, Changes, Deletes (MACD) related to Firewall appliances, configuration is included at no additional cost as a feature of the managed network services. Any MACD to be performed must be scheduled by Customer through a MACD request ticket. NOC Service Provider will respond to Customer’s telephoned requests for assistance on a 7x24 hour basis X 365 days.
The following representative MACDs related to CPE configurations are included at no additional cost:
Change to access control list.
1 to 1 NAT
Adding or changing a VPN tunnel
Simple changes to existing configurations
Simple Firewall Rule change
Adding or changing an existing VLAN configuration
Adding new Sub Net
126.96.36.199 Moves at a remote site is limited to the physical move of the hardware from one circuit to another that requires the changing of an IP address range and potentially the rebuild of up to two (2) VPN tunnels. Additional charges may apply if other requirements are necessary to complete the move, after approval has been provided through the established Change Control Process. As a general rule, configuration changes that take greater than thirty (30) minutes to execute for a single MACD, require; advanced planning, engagement of a NOC Service Provider SIM or NOC Service Provider engineer will be defined as a project MACD that will be defined for charge and a description of responsibilities within the Change Order process.
188.8.131.52 Adding of remote sites are considered new service and are subject to installation services and approval through the established Changed Control process.
184.108.40.206 Network redesigns are subject to the installation fees set forth in the pricing table or may be quoted on an individual case basis by NOC Service Provider. Changes to a host device(s) that creates a requirement for a configuration change in the remote site device(s) is considered a network redesign and additional charges may apply. These requests will be routed through the established Change Control Process before any work transpires.
220.127.116.11 Any MACD to be performed must be scheduled by the customer through a MACD request ticket. NOC Service Provider will respond to Customer’s telephoned requests for assistance on a 7x24 X 365 basis.
18.104.22.168 Move Add Change Delete (MACD) Execution
22.214.171.124.1 Non-emergency, non-expedited MACD changes within a Customer's network will be made during NBH. NOC Service Provider will support at no additional charge, aNBH (After Normal Business Hours Monday-Friday 5:01PM-7:59AM ET, Weekends and Holidays) scheduling of simple MACD’s provided a four (4) day advanced scheduling interval is provided by Customer. NOC Service Provider will acknowledge a MACD request on the same business day for those requests received before 12PM ET. MACD requests received after 12PM will be responded to by the next business day. MACD’s will be executed within a standard window of forty-eight (48) hours of acknowledgement, or within a mutually agreed upon window and all MACD’s are subject to Customer coordination.
126.96.36.199.2 Customer is responsible to phone in all Emergency or Expedited MACD requests directly to the NOC. Emergency MACD’s must be opened via phone and will have a best effort made to be addressed within four (4) business hours, no more than one emergency MACD is expected per six-month period. Schedule of Fees includes applicable fees for the following MACD implementation intervals and timeframes:
Expedited MACD requiring NBH or aNBH implementation– Requested Execution within twelve (12) hours of complete information receipt
Expedited MACD requiring NBH or aNBH implementation– Requested execution within twenty-four (24) hour period
188.8.131.52.3 There is an additional charge for Expedited MACD requests. Expedite execution will be based on “simple” MACD’s as defined in the SOW and are best effort. Expedite will be charged based on actual execution timeframe not requested.
184.108.40.206 Expedited Change Request
220.127.116.11.1 Any changes that need implementation process in a short notice or short period of time which is typically as a mitigation action with a short window or high impact requirement. Each expedited change request should be submitted and approved by pre-defined emergency change advisory Team. Expedited MACD requiring NBH or aNBH implementation– Requested Execution within twelve (12) hours of complete information receipt
18.104.22.168.2 Expedited MACD requiring NBH or aNBH implementation– Requested execution within twenty-four (24) hour period
22.214.171.124.3 MACD Expedite requests will be charged on request. Expedite execution will be based on “simple” MACD’s as defined in the SOW and are best effort. Expedite will be charged based on actual execution timeframe not requested.
126.96.36.199 General Charging Method — Change Management
|NBH||0-48 Hours||No Charge|
Simple MACD — Expedite
|NBH or aNBH||0-12 Hours||Charge per table of fee's|
Simple MACD — Expedite
|NBH or aNBH||12-24 Hours||Charge per table of fee's|
Simple MACD — Expedite
|NBH||24-48 Hours+||No Charge|
Simple MACD — Expedite
|aNBH||24-96 Hours||Charge per table of fee's|
|aNBH||96 Hours +||No Charge|
per MACD beyond the included 6 per month, expediate fees will apply
|Charge per table of fee's|
Major Network Rearrangements
The device models of Data, Voice, VNF are categorized under complexities based on Model Series on Each Service and some are combined as Resource Units [RU]. In Change Management Charging Method, the RUs are charged on MRC based on complexity, Geo Restrictions, Type of devices.
Note: Devices which are NOT identified OR Not in lists within this categorization during Network discovery, NOC Service Provider will usually categorize and holds authorization. If Customer is not satisfied with categorization of the newly identified devices, can raise dispute, and come to an agreement after a discussion with NOC Service Provider on Device Complexities.
188.8.131.52 Emergency Change Request. Any changes that need implementation process in a short notice or short period of time which is typically as a mitigation for an existing or potential Security threat OR Impact. Each emergency change request should be submitted and approved by pre-defined emergency change advisory Team. No more than 2 Emergency changes are included per year. Emergency changes can only be opened by calling the request into the NOC Service Provider NOC directly. This is expected typically begin within 4 hours of approval.
6.19 Configuration Management. Configurations will be stored after each change performed by a NOC Service Provider Engineer and after a Customer executed change when the Customer opens a NOC Service Provider MACD ticket. NOC Service Provider will also retrieve configurations automatically every month. Should the Customer make a change without notifying NOC Service Provider via MACD and a failure occurs where the most up to date configuration data has not been saved manually or automatically, the last daily archived configuration will be applied, and the Customer must implement the differential again or contract NOC Service Provider professional services to accomplish it on their behalf.
6.20 Equipment Replacement Services ("ERS") — US Domestic Only. As part of the managed network services, NOC Service Provider will provide Equipment Replacement Services to the Customers routers, Ethernet switches, firewalls, and Virtual Private Network (“VPN”) appliances from Customer provided seed stock in the event Equipment has failed and needs to be replaced at a Customer remote Site. NOC Service Provider will also provide Equipment Replacement Services upon Customer request. Devices for this equipment replacement segment will be confined to; Routers, Ethernet Switches, Firewalls and VPN Appliances.
6.20.1 Equipment Replacement Services response objectives are as follows:
184.108.40.206 NOC Service Provider will maintain and manage an adequate inventory of replacement devices located at the NOC Service Provider facility in advance of any hardware failure. NOC Service Provider will provide updates to Customer with availability of devices to be used for replacement. Upon notification to Customer by NOC Service Provider that inventory supplies are low, the Customer is responsible for authorizing re-stock of said devices.
220.127.116.11 If the Equipment major malfunction (defined as inoperable) or Customer request to replace Equipment is reported by 3:00PM EDT (Eastern Daylight Time) on a business day, NOC Service Provider will ship a configured replacement device taken from inventory using next business day delivery service for arrival to the Customer Site following the reported Equipment malfunction or Customer request. A business day is defined as Monday through Friday.
18.104.22.168 If the equipment major malfunction or Customer request to replace equipment is reported after 3:00 PM EDT or on a weekend or holiday, NOC Service Provider will ship a configured replacement device taken from inventory on the next business day using next business day delivery service.
22.214.171.124 Existing vendor maintenance agreement such as Cisco SmartNet will be adhered to in order to replace devices pulled from inventory at the facility. Customer is responsible for providing SmartNet information to NOC Service Provider.
126.96.36.199 NOC Service Provider’s responsibility with respect to the Equipment Replacement Services shall be limited to the Customer remote site equipment connected to the network.
6.20.2 Equipment Replacement Service: Applicable solely for Customers with Seed Stock. As a standard part of the Equipment Replacement Services, NOC Service Provider will configure the replacement device and ship it using next business day delivery service to the Customer Site. Once it has arrived at the Site, NOC Service Provider, via a phone call, will guide local Customer resource(s) in unpacking the box, and connecting the new device to replace malfunctioning equipment. A tele-install technician will be on the phone to walk through the step-by-step process to connect the new device. The only applicable charges with respect to Equipment Replacement Services are for the shipping charges for the replacement device. Additional Customer Responsibilities are: (i) Re-pack malfunctioning equipment and ship back to NOC Service Provider inventory facility, (ii) Shipping charges for the replacement device. Customer is responsible for seed stock inventory, and (iii) Assist in associating NOC Service Provider with OEM maintenance contracts.
6.20.3 Next Business Day Onsite Hardware Replacement —US Domestic Only Locations. On-site hardware replacement covers normal wear and tear of devices under normal use. On-site hardware replacement does NOT cover devices damaged by misuse, lost or stolen devices, devices damaged by flood, fire or other Acts of God, manufacturer defect or recall.
188.8.131.52 On-Site Hardware Replacement —US Domestic Only. A Trouble Ticket must be opened with the NOC Service Provider Help Desk in order to initiate the hardware replacement process. If after a Trouble Ticket is opened and standard troubleshooting tests are completed, it is determined by the NOC Service Provider Help Desk that the device should be replaced; the GLSs Logistics Team shall be notified to initiate a hardware replacement and the GLSs scheduling team shall also be notified to schedule the on-site technician to install the replacement device. If the device is determined to be defective prior to 2:00 P.M. Eastern Time, a technician will be scheduled to arrive on site (pending verification of hardware shipment by NOC Service Provider) to install the replacement device based on the level of service selected. If the determination is made after 2:00 P.M. Eastern Time, NOC Service Provider will attempt to schedule a technician based on the level of service selected in the contract, but may not be able to schedule a technician for the next applicable day (depending on the level of service selected) and therefore will schedule a technician for the subsequent applicable day based on the service level selected at time of contract.
184.108.40.206 NOC Service Provider shall dispatch a technician onsite to the Customer Site to complete the following services to replace a failed device:
Remove the failed device from the existing network connectivity.
Un-box and power up the replacement device.
Physically install any existing interface cards or existing external components from the failed device.
Connect the replacement device to the existing network connections.
Place the failed devices in the box for shipment back to the manufacturer’s logistics facility using included return shipping label. Provide shipping carton to Customer. Customer is responsible to arrange delivery to NOC Service Provider logistics facility.
220.127.116.11 NOC Service Provider shall complete the following service validation for On-Site hardware replacement:
Confirm that Equipment configuration is properly installed and operational. NOC Service Provider shall ping a location on the Internet to validate equipment is functioning properly.
For all types of On-Site Hardware Replacement coverage, Customer will return the defective device as required using pre-printed and included ground shipping label.
6.20.4 After Hours Work. The above rates assume work will be performed during NBH Work performed aNBH or on weekends will be subject to a 50% uplift to all rates. Holiday work may be scheduled based upon technician availability and will be subject to a 100% uplift to all the rates.
6.21 Customer Responsibilities.
6.21.1 Provide identity and contact information for the Customer Project Manager.
6.21.2 Provide a leased line Internet access Circuit with appropriate bandwidth on which management traffic may be transmitted to/from Customer Legacy Network.
6.21.3 Customer must have an IP (Internet Protocol) routed network using publicly-routable IP addresses or privately-routable IP addresses (RFC 1918) for all Managed Devices. If IP addresses are private, then Customer’s device must be capable of performing static Network Address Translation (NAT) for each Managed Device.
6.21.4 Provide to NOC Service Provider (and change, if necessary) SNMP community strings.
6.21.5 Activate SNMP polling capability on all Managed Devices.
6.21.6 Provide email addresses of Customer designated contacts for trouble notification.
6.21.7 Provide information necessary for NOC Service Provider to monitor and report Managed Device failures. This information includes contact name, telephone number, IP address, street address, and the Site's hours of operation.
6.21.8 Customer is responsible for gaining access for NOC Service Provider to Sites that are owned/controlled by third parties
6.21.9 Perform the appropriate Site preparation activities including, but not limited to, power, core drilling, ventilation, proper environmentals as per the Equipment manufacturer’s specifications, and the installation of Equipment racks.
6.21.10 Provide an available hub or switch port on downstream LAN for deployed Equipment.
6.21.11 Provide all cabling required for connecting downstream LAN devices to the Equipment.
6.21.12 Provide an analog Circuit to the Equipment installation point at each Site. The Customer shall also provide an analog modem for Out of Band Access to the Equipment at each Site. Customer is responsible for providing the patch cable from the Circuit to the modem.
6.21.13 Provide information that documents the Legacy Network design and configuration if this is an extension to an existing network. Customer must have already devised their IP addressing scheme and is expected to provide in spreadsheet (or similar) format, the IP addresses that correspond to each piece of Equipment installed as part of the Services provided in this Master Agreement.
6.21.14 Provide Customer resources on-site during Equipment Installation and Test and Turn-Up.
6.21.15 Provide a signature sign-off as concurrence of Site completion for each Site where NOC Service Provider has provided Services under this Master Agreement.
6.21.16 Should the Customer install their own in-house wiring, it must meet at a minimum, the specifications for Category-5 cabling. In addition, the cabling will be installed within six (6) feet of Equipment location. Failure to meet these requirements at the time of Equipment Installation will constitute a Customer Not Ready occurrence.
6.21.17 Project execution will be performed during Normal Business Hours. The Customer will be responsible for making access available during this timeframe.
6.21.18 If the Customer has a Legacy Network, it is the Customer’s responsibility to update the configurations of those devices and sites that must communicate to the Equipment deployed as part of the Services provided in this Master Agreement to ensure proper connectivity.
6.21.19 Customer will provide NOC Service Provider with login and password information to all Legacy Equipment that is related to the Services provided in this Master Agreement, including both basic access and modification access for the remote Site routers and read access only for the host Site routers
6.21.20 Customer is to validate that Legacy Equipment related to Services provided in this Master Agreement, has appropriate IOS levels,
6.21.21 Unless explicitly defined as part of this Master Agreement, Customer is responsible for:
Required electrical power supplies, correct power outlets, appropriate UPS protection.
Necessary cabinets, racks, and/or shelving to install equipment.
Functional and available cable plant (copper / fiber) at the facility work is being performed at and necessary patch cables.
Provisioning and verification of required data, voice, Internet, or telephone circuits.
Coordination with and scheduling of third-party vendors NOC Service Provider is required to work with.
Disposal of shipping material related to this Master Agreement (i.e., boxes, packing material, etc.).
Valid data backups prior to work beginning on system infrastructure related projects
6.22.1 Installations and Engineering Services will be performed during NBH (Normal Business Hours 8AM-5PM local time for US Domestic Locations and Eastern Standard Time for International Locations, Monday-Friday excluding observed holidays), with the exception of helpdesk and network management services which are provided 24x7.
6.22.2 Customer will provide local site contacts (English speaking) to work directly with NOC Service Provider.
6.22.3 Prices exclude sales, use or value-added taxes of any kind.
6.22.4 NOC Service Provider will be able to manage and monitor through existing network connections. Primary connectivity method is an IPSEC VPN Tunnel. Additional charges may apply if new connections are required, they will be proposed and addressed within the Change Order process if required.
6.22.5 Customer is responsible for all PC related support
6.22.6 Assumes the use of "non-union" labor. If "union" labor is required, additional charges will apply.
6.22.7 During the engagement, NOC Service Provider may require ad-hoc access to Customer personnel who participated in the meetings. This ongoing access will allow resolution of any questions or issues as they arise.
6.22.8 No Security Operations Center, Security Information and Event Management, (“SIEM”), Log Collection, threat detection, response or Analysis for Security incident awareness is included in this service offering.
6.22.9 This document requires a review of the customer’s network and the Build of Materials and is subject to change based on the review.
6.22.10 Log collection, storage, security analysis, trending and incident detection and response are explicitly a Customer responsibility.
6.22.11 Assumes 10ft ceilings
6.22.12 No out of band (OOB) management option is included within this SOW. Should the Customer choose not to implement OOB NOC Service Provider mitigation actions will be focused on actions and tasks that can be used to isolate the trouble. NOC Service Provider mitigation actions include engaging local Customer Site resources, engaging the Customers IT or helpdesk to ensure no upstream impact to non-managed devices is preventing visibility or access, opening a carrier Trouble Ticket to ensure the circuit is available to the demarc, or requesting approval to optionally dispatch a technician for remote hands support.