Master Service Agreement
This Agreement provides the general terms and conditions applicable to Customer’s purchase of communications services (“Service”) from Bluestem Fiber. Here on out all reference to Bluestem Fiber will also include Bluestem Network.
ARTICLE 1. ORDERS FOR AND DELIVERY OF SERVICE
1.1 Submission and Acceptance of Customer Order(s). Customer may submit requests for Service in a form designated by Bluestem Fiber (“Customer Order”). Customer Orders shall contain the duration for which Service is ordered (“Service Term”). Service will continue on a month to month basis at the expiration of the Service Term at Bluestem Fiber’s then current rates. Bluestem Fiber will notify Customer of acceptance of the Customer Order by delivering (in writing or electronically) the date by which Bluestem Fiber will install Service (the “Customer Commit Date”) or by delivering the Service. Renewal Customer Orders will be accepted by Bluestem Fiber’s continuation of Service. If Customer submits Customer Orders electronically, Customer shall assure that any passwords or access devices are available only to those having authority to submit Customer Orders. Customer will pay Bluestem Fiber’s then current charges for moves, adds or changes agreed to by Bluestem Fiber respecting any Customer Order or Service.
1.2 Credit Approval and Deposits. Customer will provide Bluestem Fiber with credit information as requested. Bluestem Fiber may require Customer to make a deposit as a condition of Bluestem Fiber’s acceptance of any Customer Order or continuation of: a) usage-based Services; or b) non-usage based Service where Customer fails to timely pay Bluestem Fiber hereunder or Bluestem Fiber reasonably determines that Customer has had an adverse change in financial condition. Deposits will not exceed 2 months’ estimated charges for Service and are due upon Bluestem Fiber’s written request. When Service is discontinued, the deposit will be credited to Customer’s account and the balance refunded.
1.3 Customer Premises; Title to Equipment. If access to non-Bluestem Fiber facilities is required for the installation, maintenance, grooming, movement, upgrade and/or removal of Bluestem Fiber network or equipment, Customer shall, at its expense, secure such right of access and shall arrange for the provision and maintenance of power and HVAC as needed for the proper operation of such equipment and network. Title to equipment (including software) provided by Bluestem Fiber remains with Bluestem Fiber. Customer will not create or permit to be created any encumbrances on Bluestem Fiber’s equipment.
1.4 Scheduled Maintenance and Local Access. Scheduled maintenance will not normally result in Service interruption. If scheduled maintenance requires Service interruption, Bluestem Fiber will: (i) provide Customer 7 days’ prior written notice, (ii) work with Customer to minimize such interruptions and (iii) use commercially reasonable efforts to perform such maintenance between midnight and 6:00 a.m. local time. If third party local access services are involved in or connected to the Services, Customer will: (i) provide Bluestem Fiber with circuit facility and firm order commitment information and design layout records to enable cross-connects to Bluestem Fiber Service(s) (provided by Bluestem Fiber subject to applicable charges), (ii) cooperate with Bluestem Fiber (including but not limited to changing demarcation points and/or equipment and providing necessary LOA’s) respecting circuit grooming or
re-provisioning, and (iii) where a related Service is disconnected, provide Bluestem Fiber a written disconnection firm order commitment from the relevant third party provider. Bluestem Fiber may re- provision any local access circuits from one off-net provider to another or to the Bluestem Fiber owned and operated network (on-net), and such changes shall be treated as scheduled maintenance, provided that Bluestem Fiber shall provide Customer 30 days’ notice of such activity.
ARTICLE 2. BILLING AND PAYMENT
2.1 Commencement of Billing. Bluestem Fiber will deliver written or electronic notice (a “Connection Notice”) to Customer when Service is installed, at which time billing will commence (“Service Commencement Date”). If Customer notifies Bluestem Fiber within 3 days after delivery of the Connection Notice that Service is not functioning properly, Bluestem Fiber will correct any deficiencies and, upon Customer’s request, credit Customer’s account in the amount of 1/30 of the applicable MRC for each day the Service did not function properly. If Bluestem Fiber cannot complete installation due to Customer delay or inaction, Bluestem Fiber may begin charging Customer for the Service and Customer shall pay such charges which will appear on Customer’s first invoice following the Service Commencement Date.
2.2 Payment of Invoices and Disputes. Invoices are delivered monthly and due 30 days after the invoice date. Fixed charges are billed in advance and usage-based charges are billed in arrears. Billing for partial months is prorated. Past due amounts bear interest at 1.5% per month or the highest rate allowed by law (whichever is less). Customer is responsible for all charges respecting the Service, even if incurred as the result of unauthorized use. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount and submit written notice of the disputed amount (with details of the nature of the dispute and the Service s and invoice(s) disputed). Disputes must be submitted in writing within 90 days from the date of the invoice. If the dispute is resolved against Customer, Customer shall pay such amounts plus interest from the date originally due.
2.3 Taxes and Fees. Excluding taxes based on Bluestem Fiber’s net income, Customer is responsible for all taxes and fees arising in any jurisdiction imposed on or incident to the provision, sale or use of Service, including but not limited to value added, consumption, sales, use, gross receipts, withholding, excise, access, bypass, ad valorem, franchise or other taxes, fees, duties or surcharges (including regulatory and 911 surcharges), whether imposed on Bluestem Fiber or a Bluestem Fiber affiliate, along with similar charges stated in a customer Order (collectively “Taxes and Fees”). Some Taxes and Fees, and costs of administering the same, are recovered through imposition of a percentage surcharge(s) on the charges for Service. If Customer is required by law to make any deduction or withholding of withholding Taxes from any payment due hereunder to Bluestem Fiber, then, notwithstanding anything to the contrary contained in this Agreement, the gross amount payable by Customer shall be increased so that, after any such deduction or withholding for such withholding Taxes, the net amount received by Bluestem Fiber will not be less than Bluestem Fiber would have received had no such deduction or withholding been required. Charges for Service are exclusive of Taxes and Fees. Customer may present Bluestem Fiber with an exemption certificate eliminating Bluestem Fiber’s liability to pay certain Taxes and Fees; Bluestem Fiber will give effect thereto prospectively.
2.4 Regulatory and Legal Changes. If changes in applicable law, regulation, rule or order materially affect delivery of Service, the parties will negotiate appropriate changes to this Agreement. If the parties cannot reach agreement within 30 days after Bluestem Fiber’s notice requesting renegotiation: (a) Bluestem Fiber may, on a prospective basis after such 30 day period, pass any increased delivery costs on to Customer and (b) if Bluestem Fiber does so, Customer may terminate the affected Service on notice to Bluestem Fiber delivered within 30 days.
2.5 Cancellation and Termination Charges.
(A) Customer may cancel a Customer Order (or portion thereof) prior to the delivery of a Connection Notice upon written notice to Bluestem Fiber identifying the affected Customer Order and Service. If Customer does so, Customer shall pay Bluestem Fiber a cancellation charge equal to the sum of: (i) for “off-net” Service, third party termination charges for the cancelled Service; (ii) for “on-net” Service, 1 month’s monthly recurring charges for the cancelled Service; (iii) the non-recurring charges for the cancelled Service; and
(iv) Bluestem Fiber’s out of pocket costs (if any) incurred in constructing facilities necessary for Service delivery.
(B) Customer may terminate specified Service(s) after the delivery of a Connection Notice upon 30 days’ written notice to Bluestem Fiber. If Customer does so, or if Service is terminated by Bluestem Fiber hereunder as the result of Customer’s default, Customer shall pay Bluestem Fiber a termination charge equal to the sum of: (i) all unpaid amounts for Service actually provided; (ii) 100% of the remaining monthly recurring charges for months 1-12 of the Service Term; (iii) 50% of the remaining monthly recurring charges for month 13 through the end of the Service Term; and (iv) if not recovered by the foregoing, any termination liability payable to third parties resulting from the termination and any out of pocket costs of construction to the extent such construction was undertaken to provide Services hereunder. Customer acknowledges that the charges in this Section are a genuine estimate of Bluestem Fiber’s actual damages and are not a penalty.
ARTICLE 3. DEFAULT
If (A) Customer fails to make any payment when due and such failure continues for 5 business days after written notice from Bluestem Fiber, or (B) either party fails to observe or perform any other material term of this Agreement and such failure continues for 30 days after written notice from the other party, then the non-defaulting party may: (i) terminate this Agreement and/or any Customer Order, in whole or in part, and/or (ii) subject to Sections 4.1 and 4.3, pursue any remedies it may have at law or in equity.
ARTICLE 4. LIABILITIES AND SERVICE LEVELS
4.1 Damages Limitations. Neither party shall be liable for any damages for lost profits, lost revenues, loss of goodwill, loss of anticipated savings, loss of data or cost of purchasing replacement services, or any indirect, incidental, special, consequential, exemplary or punitive damages arising out of the performance or failure to perform under this Agreement or any Customer Order.
4.2 Disclaimer of Warranties. BLUESTEM FIBER MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY APPLICABLE SERVICE SCHEDULE.
4.3 Service Levels. The “Service Level” commitments applicable to Services are contained in the Service Schedules for each Service. If Bluestem Fiber does not meet a Service Level, a credit will be issued to Customer as stated in the applicable Service Schedule on Customer’s request. Bluestem Fiber’s maintenance log and trouble ticketing systems are used to calculate Service Level events. To request a credit, Customer must contact Bluestem Fiber Customer Service (contact information is located at www.bluestemfiber.com) or deliver a written request (with sufficient detail to identify the affected Service) within 60 days after the end of the month in which the event occurred. Total monthly credits will never exceed the charges for the affected Service for that month. Customer’s sole remedies for any non – performance, outages, failures to deliver or defects in Service are contained in the Service Levels applicable to the affected Service.
4.4 Right of Termination for Installation Delay. In lieu of installation Service Level credits, if Bluestem Fiber’s installation of Service is delayed by more than 30 business days beyond the Customer Commit Date, Customer may terminate the affected Service without liability upon written notice to Bluestem Fiber, provided such written notice is delivered prior to Bluestem Fiber delivering a Connection Notice for the affected Service. This Section shall not apply where Bluestem Fiber is constructing facilities to a new location not previously served by Bluestem Fiber.
ARTICLE 5. GENERAL TERMS
5.1 Force Majeure. Neither party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such party’s reasonable control (“force majeure event”). In the event Bluestem Fiber is unable to deliver Service as a result of a force majeure event, Customer shall not be obligated to pay Bluestem Fiber for the affected Service for the duration of the event. Force majeure events and scheduled maintenance under Section 1.4 are considered “Excused Outages.”
5.2 Assignment and Resale. Customer may not assign its rights or obligations under this Agreement or any Customer Order
Without the prior written consent of Bluestem Fiber, which will not be unreasonably withheld. This Agreement shall apply to any permitted transferees or assignees. Unless otherwise provided in a Service Schedule, Customer may provide Service to third parties or use the Services in connection with goods or services provided by Customer to third parties (“Customer Provided Services”) provided that Customer shall indemnify, defend and hold Bluestem Fiber and its affiliates harmless from any claims arising from or related to any Customer Provided Services. If Customer sells telecommunications services, Customer certifies that it has filed all required documentation and will at all times have the requisite authority with appropriate regulatory agencies respecting the same. Nothing in this Agreement, express or implied, confers upon any third party any right, benefit or remedy under or by reason of this Agreement.
5.3 Affiliates. Service may be provided to Customer by an affiliate of Bluestem Fiber and Bluestem Fiber may use third parties to provide certain aspects of the Service, but Bluestem Fiber shall remain responsible to Customer for the delivery and performance of the Service. Customer’s affiliates may purchase Service pursuant to this Agreement, and Customer shall be jointly and severally liable for all claims and liabilities related to Service ordered by any Customer affiliate.
5.4 Notices. Notices shall be in writing and deemed received if delivered personally, sent via Email, prepaid overnight courier, electronic mail (if an e-mail address is provided) or sent by U.S. Postal Service or First Class International Post, addressed as follows:
IF TO BLUESTEM FIBER: IF TO CUSTOMER:
Bluestem Fiber, LLC Name
941 O street suite 1018 Address
Lincoln, NE 68508 Address
Attn: Greg Dynek Attn:
For billing inquiries/disputes, requests for Service Level credits and/or requests for disconnection of Service (other than for default):
Bluestem Fiber, LLC 941 O street Suite 1018
Lincoln, NE 68508 Attn: Director, Billing
If no Customer address is provided above, notices may be provided to any electronic or physical address identified on the Customer Order. Either party may change its notice address upon notice to the other party. All notices shall be deemed given on (i) the date delivered if delivered personally, by facsimile or e-mail (or the next business day if delivered on a weekend or legal holiday), (ii) the business day after dispatch if sent by overnight courier, or (iii) the third business day after dispatch if otherwise sent.
5.6 Intellectual Property and Publicity. Neither party is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, trade names, patents, trade secrets or other form of intellectual property of the other party or its affiliates without the express prior written authorization of the other party. Neither party shall issue any press release or other public statement relating to this Agreement, except as may be required by law or agreed between the parties in writing. The parties agree to keep the terms of this Agreement and all information of a confidential nature obtained in the performance of this Agreement confidential and not disclose such information to third parties, other than to its vendors and affiliates, as well as to treat any information or
documentation disclosed between the parties during the performance of this Agreement (including this Agreement) in accordance with the terms and conditions of a non-disclosure agreement to the extent applicable then in effect between the parties.
5.7 Governing Law; Amendment. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to its choice of law rules. Each party shall comply with all applicable laws, rules and regulations associated respectively with Bluestem Fiber’s delivery or Customer’s use of the Service under the Agreement. This Agreement, including any Service Schedule(s) and Customer Order(s) executed hereunder, constitutes the entire and final agreement and understanding between the parties with respect to the Service and supersedes all prior agreements relating to the Service. This Agreement may only be modified or supplemented by an instrument executed by an authorized representative of each party. No failure by either party to enforce any right(s) hereunder shall constitute a waiver of such right(s).
5.8 Latin American Services. With respect to Services provided in Latin America, Customer agrees that it (or its local Affiliate) will enter into a separate local country addendum/agreement (as approved by local authorities) (“LCA”) with the respective Bluestem Fiber Affiliate which provides the local Service(s), and such Bluestem Fiber Affiliate will invoice the Customer (or its local Affiliate) party to the LCA for the respective local Service(s).
5.9 Relationship and Counterparts. The relationship between the parties is not that of partners, agents, or joint ventures. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument. Digital signatures and electronically exchanged copies of signed documents shall be sufficient to bind the parties to this Agreement.