Snapshot 40479
Normalized text
Scripts and page chrome removed; this is what change detection compares.
SIMPLII MASTER SERVICE AGREEMENT Simplii, LLC,. (hereinafter referred to as “SIMPLII”)
and ___________________, Address, City, State Zip (“the Customer”), hereby agree to the
following terms and conditions for SIMPLII contracted services with the Customer. 1.
EFFECTIVE DATE, SERVICES, AND SERVICES TERM. This Master Service Agreement
(“MSA”), in conjunction with the contracted order for services, and any attached adjustments,
comprise the Agreement for contracted communication services. This Agreement will supersede
any oral, written, or electronically delivered communication between the parties. SIMPLII
reserves the right, reject any Service Agreement. This Agreement is enforceable as of the date
the Agreement(s) is signed by both parties (signifying the “Effective Date”). SIMPLII agrees to
provide to Customer (subject to availability and the quality of the available services) and
Customer agrees to purchase from SIMPLII the communication services described in this
Agreement (“Services”), at the locations set forth, for a term of 36 months (“Contract Term”), all
as detailed on the Service Agreement(s) incorporated as part of this Agreement. The Contract
Term commences upon installation of the Services by SIMPLII (“Installation Date”). Additional
Services added at a later date commence upon that install date for those additional services.
Installation of services occurs at the delivery of operating communication services ("Installation
of Service"). SIMPLII will use reasonable efforts to install the services on the date agreed upon
by the parties. SIMPLII does not guarantee that Services will be installed and provisioned on
Customer’s desired due date. Subject to the early termination provisions set forth herein, at the
end of the Contract Term, this Agreement will automatically continue on a month to month basis
("Renewal Contract Term") until terminated by either party with at least (30) days advance
written notice to the other party. Unless otherwise provided by law, Customer shall, upon
providing SIMPLII notice of termination of Services, be responsible for payment from the
Contract End Date (date of disconnection) to the end of the 30 day notice period. In the event of
early termination, the early termination fee shall be calculated from the end of the 30 day notice
period until the expiration date of the Service Agreement term. 2. RATES, CHARGES, BILLING
AND PAYMENT. Rates and charges are described in this Agreement. Customer agrees to
convert its telecommunications services and must commit to a specific date to transfer service.
Customer further agrees that billing will commence with SIMPLII's first regular billing cycle after
Installation of Service. Monthly recurring charges (“MRC”) will be billed in advance each month.
Non-recurring charges (“NRC”) will be billed on the Installation Date, or if the NRC are incurred
after the Installation Date, or are usage based, such charges will be billed at the time services
are provided. Customer is responsible for payment of all originating and terminating calls to
Customer’s number(s). Payments are due on the Payment Due By date set forth on the SIMPLII
invoice. Customer must provide payment in full on Payment Due By Date. If Customer believes
it has been billed in error or otherwise disputes a charge, Customer must notify SIMPLII within
45 days of the date of the invoice containing the disputed charge. SIMPLII will promptly
investigate and notify Customer of the results of its investigation. Customer’s notice must
specifically detail the dispute and provide supporting documentation for the amount in dispute.
SIMPLII will investigate all disputes and if appropriate, credit Customer’s account or notify
Customer of denial of the dispute. SIMPLII may assess a late fee of 1.5% per month (not to
exceed the maximum rate allowed under state law) on any undisputed balances not paid when
due or any disputed balances later found to be correct. Late fees may be assessed, as of the
original Due By Date, against any disputed amount denied by SIMPLII. SIMPLII has the option
to suspend Services and/or to pursue any and all other legal remedies until payment is made.
Termination of Services may follow. Customer will pay any and all costs incurred in collection of
rates and charges due and payable, including reasonable attorney’s fees and all collection
agency costs, whether or not a suit is instituted. All payments attorney’s fees and all collection
agency costs, whether or not a suit is instituted. All payments hereunder will be in U.S. currency.
If Services are terminated after suspension, Customer may also be responsible for early
termination fees outlined in this agreement. Customer authorizes SIMPLII to conduct a credit
search and agrees to provide SIMPLII with information regarding payment history for
communications services, number of years in business, financial statement analysis and
commercial credit bureau rating. This Agreement is subject to credit approval. SIMPLII may
require Customer to tender a deposit up to the maximum permitted by law to guarantee
payment hereunder. Such deposit may have, as an additional component, deposit for any
SIMPLII provided Customer Premise Equipment (“CPE”). When Customer establishes
acceptable credit history or upon termination of this Agreement, SIMPLII will return the balance
of the deposit, if any, to Customer along with interest as required by law. Customer will return all
SIMPLII-provided CPE. SIMPLII shall not be liable for any third party charges arising from or
related to the termination of any previous agreement for communications services or the failure
of Customer to terminate any previous agreement for communications services. If any property
owner, under which Customer is a tenant, assess a fee against SIMPLII in order to, or as a
result of, the provisioning of any Services to Customer, SIMPLII will pass through these charges
to Customer. SIMPLII will assess a one-time Late Payment Penalty of $30.00 for each late
invoice and monthly interest of 1.5% on all invoice amounts not received by Payment Due By
date indicated on the invoice. The Late Payment Penalty will be applied against each invoice
individually. SIMPLII will assess a Disconnect Fee upon Customer request for Early Termination
of the Contract or for Early Termination due to Customer non-payment. See Section 14 for
Disconnect Fee calculation. 3. CHANGES IN RATES, TERMS AND CONDITIONS. SIMPLII
may change its rates, terms and/or conditions upon 30 days’ notice to Customer. Use of
SIMPLII services after the thirty (30) day notice period shall be deemed consent to the changed
rates, terms and conditions. 4. TAXES, SURCHARGES AND ASSESSMENTS. Customer is
responsible for payment of all federal, state, local taxes, and or surcharges (excluding SIMPLII
income taxes). SIMPLII will collect all such taxes, charges, and surcharges unless Customer
provides SIMPLII with proof of exemption. Customer will indemnify SIMPLII for any and all
costs, claims, taxes, charges, and surcharges levied against SIMPLII relative to such exempt
status. Surcharges and assessments, which are not required by regulatory agencies, but which
SIMPLII is permitted to charge to recover expenses, may be applied. All such charges will be
set forth on a detailed invoice. SIMPLII reserves the right make necessary changes to tax rates
based on the current published tax rates. 5. FRAUD, TELEPHONE NUMBERS AND
DIRECTORY LISTINGS. Customer is responsible for payment of any charges incurred due to
fraud, abuse, or misuse of the Services, whether known or unknown, to Customer. It is the
Customer’s responsibility to take all measures to ensure against such occurrences. SIMPLII
shall take all reasonable measures to provide Customer with continuation of existing telephone
numbers. However, if Customer is changing location at the time of conversion or taking service
for the first time at a location, SIMPLII can make no guarantee regarding assignment of
particular telephone numbers to Customer. SIMPLII shall not be liable to Customer for any
change in telephone numbers due to actions of any vendor or supplier of services to SIMPLII.
Customer’s reliance upon and/or use of any Service numbering information prior to installation
and acceptance of Service is at the Customer’s sole risk. SIMPLII shall not be liable for any
inaccurate or dropped listings of any publisher/directory database. SIMPLII shall not be liable for
any errors or omissions, whether arising through negligence or otherwise, in the information
furnished to a publisher or to a directory database(s). Additional costs may be assessed for
publisher/directory database listing charges. charges. 6. COMPLIANCE WITHIN THE LAW. This
Agreement is subject to all applicable federal, state, local laws, regulations, rulings, orders and
other actions of governmental agencies (“Rules”), and the securing of and continuance of any
required approvals, authorizations, or price lists filed with the FCC or any other governmental
agency. SIMPLII will use good faith reasonable efforts to obtain, retain, and maintain such
approvals and authorizations. If any such Rule adversely affects the Services or requires
SIMPLII to provide Services other than in accordance with the terms of this Agreement, either
party may, without liability to the other party, terminate the affected Services upon 30 days prior
written notice to the other party. In performing their obligations under this Agreement, the parties
will comply with all applicable Rules, specifically including, but not limited to, the Rules
governing 911/E-911 and any other emergency services. Subject to SIMPLII’s 911/E-911, and
unless otherwise specifically agreed, (a) SIMPLII will provide Customer with the network
connection for each billing telephone number (BTN) or trunk group that comprise the Services,
and (b) SIMPLII will provide the appropriate Public Safety Answering Point (PSAP) with the
automatic location identification (ALI), including the same emergency response location, for all
BTNs of the circuit or trunk group regardless of the number of lines, trunks, or unique telephone
numbers on that circuit or trunk group. Customer will be responsible for providing all other
911/E-911 services as required by the Rules, including, but not limited to agreements with, and
network or other connection to, the local PSAPs. Customer will maintain the necessary
databases and update and transfer the ALI to the appropriate PSAPs. SIMPLII is not
responsible for and will not make any changes or submit updates to 911/E-911 databases for
any services other than the one emergency response location as set forth above. Customer
agrees to fully indemnify, defend, and hold harmless SIMPLII, its officers, directors, employees,
agents and subcontractors from all liabilities, claims, fees, expenses, costs or damages of any
kind arising out of personal injury or death or damage to property related to Customer’s failure
to meet any 911/E911 requirements or agreements. If any provision under this agreement
violates any applicable federal, state, and local laws, regulations, rulings, orders and other
actions of governmental agencies (“Rules”), the Rules shall supersede and the remainder of the
agreement shall remain intact. 7. SERVICES, MAINTENANCE AND UPGRADE OF
FACILITIES. Services will meet all industry standards. SIMPLII will maintain its facilities and
equipment used to provide the Services in conformance with industry standards, at no additional
charge to Customer, except where work or service calls result from failure or malfunction in, or
improper operation of, Customer’s facilities and/or equipment. In such event, Customer will
reimburse SIMPLII for the cost of the required maintenance and equipment at SIMPLII’s
standard time and material rate plus any taxes imposed upon SIMPLII related to such
maintenance. SIMPLII reserves the right to suspend Service for scheduled maintenance or
planned enhancements or upgrades or emergency repairs to SIMPLII’s network without notice
to Customer. SIMPLII will work to provide Customer with notice of such upgrades and
maintenance where at all possible. SIMPLII equipment will remain the sole and exclusive
property of SIMPLII or SIMPLII’s assignee. Customer will not tamper with, remove or conceal
any SIMPLII identifying plates, tags or labels. Customer will indemnify, hold harmless and
defend SIMPLII against any liens placed on SIMPLII equipment due to Customer’s action or
inaction. Any lien will be discharged by Customer within then (10) days of notice of filing. Failure
to discharge any such lien is a material breach of this Agreement, and may result in immediate
termination. Customer will provide equipment compatible with the Services and SIMPLII’s
network and facilities. Customer will bear the costs of any additional equipment reasonably
required to be installed because of the use of SIMPLII’s network or facilities. Only Authorized
Contact for Customer may make Service change (addition or deletion of Services) request.
Designated Authorized Contact must have the ability to make any service related decision with
SIMPLII, and be the main contact on the contract. Upon termination of the Service, Customer
grants SIMPLII the right to recover SIMPLII provided equipment from customer’s premises upon
the termination of this agreement. In the event Customer fails to return the equipment, SIMPLII
may invoice Customer for the then fair market value of such equipment. market value of such
equipment. SIMPLII reserves the right to substitute, change or rearrange any equipment used in
delivering Services that does not affect the quality, cost or type of Services. SIMPLII will manage
its network in SIMPLII’s sole discretion. Customer will provide all reasonable information,
authorizations, and access required by SIMPLII for the purpose of installing Services,
performing routine network grooming, maintenance, upgrades, and addressing emergencies. 8.
SERVICE INTERRUPTION CREDITS. Simplii has a guaranteed uptime of its own services of
99.99%. If Simplii fails to observe 99.99% Uptime, to their own services, Credits are subject to
the limitation of liability set forth in Section 9, and shall only be given for disruption of Services in
accordance with this Section. Upon request, Customer shall be entitled to a Credit for any
disruption that exceeds twenty four (12) hours and for which SIMPLII is the sole cause of such
disruption and such disruption is not the result of (i) scheduled maintenance that occurs
between the hours of 11:00 pm (MT) and 6:00 am (MT); (ii) planned enhancements, or (iii)
upgrades. Such credit shall be based upon the ratio of the duration of the service interruption
(measured from the time the interruption is reported to or detected by Company, whichever
occurs first) to the total time in a 30 day month. That ratio, multiplied by the monthly rate for the
service affected shall determine the amount of the credit allowance. No Credit shall be owing for
any disruption resulting from a Force Majeure event. SIMPLII will not be liable for 3rd Party
Provider of network (internet) service interruption. SIMPLII will not be liable for interruptions due
to viruses in Customer network. SIMPLII can work on these issues, Customer will be charged by
SIMPLII normal service rates. 9. LIMITED LIABILITY. SIMPLII’S LIABILITY AND THE
EXCLUSIVE REMEDY OF CUSTOMER FOR DAMAGES ARISING OUT OF OR RELATED TO
THE SERVICES AND/OR THIS AGREEMENT, WILL BE SOLELY LIMITED TO AN AMOUNT
NO GREATER THAN THE AMOUNTS PAID BY CUSTOMER TO SIMPLII DURING THE
MONTH OF THE OCCURRENCE OF ANY CLAIM. IN NO EVENT WILL SIMPLII BE LIABLE
TO THE CUSTOMER FOR LOSS OF USE, INCOME OR PROFITS, LOSS OF REVENUES,
LOSS OF SAVINGS OR HARM TO BUSINESS OR ANY OTHER SPECIAL, INCIDENTAL,
INDIRECT, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES, REGARDLESS OF
THE FORSEE ABILITY THEREOF. 10. DISCLAIMER/LIMITED WARRANTY. EXCEPT AS
SPECIFICALLY SET FORTH IN THIS AGREEMENT, SIMPLII MAKES NO WARRANTIES,
(EXPRESSED OR IMPLIED), UNDER THIS AGREEMENT AND SPECIFICALLY DISCLAIMS
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
SIMPLII DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR
ERRORFREE. 11. CUSTOMER WARRANTIES. (a) The Customer represents and warrants that
it is an entity, duly organized, validly existing and in good standing under the laws of its origin,
with all requisite power to enter into and perform its obligations under this Agreement in
accordance with its terms; (b) Customer represents and warrants that neither its equipment nor
facilities will pose a hazard to SIMPLII's equipment or facilities or create a hazard to SIMPLII's
personnel or customers or the public in general; (c) Customer represents and warrants that its
use of the Service will comply and conform with all applicable federal, state, local laws,
administrative and regulatory requirements and any other authorities having jurisdiction over the
subject matter of this Agreement and it will be responsible for applying for, obtaining and
maintaining all registrations and certifications which may be required by such authorities; (d)
Customer represents and warrants that it will not resell all or a portion of the Service(s) provided
by SIMPLII under this Agreement. Customer will indemnify and hold SIMPLII harmless from any
and all loss, liability, claim, demand, and expense (including reasonable attorneys’ fees) related
to Customer’s violation of this Section. 12. CONFIDENTIAL INFORMATION. The parties may
have access to certain information, the ownership and confidential status of which is highly
important to the other party and is ownership and confidential status of which is highly important
to the other party and is treated or designated by one of the parties as confidential (herein
referred to as “Confidential Information”). Neither party will disclose the other party’s
Confidential Information, directly or indirectly under any circumstances, to any third person
without the express written consent of the other party, and neither party will copy, transmit,
reproduce, summarize, quote, or make commercial or other use whatsoever of the other party’s
Confidential Information, except as may be necessary to perform its duties hereunder or as
required by the Rules. Each party will exercise the highest degree of care in safeguarding the
other party’s Confidential Information against loss, theft, or other inadvertent disclosure and take
all steps necessary to maintain such confidentiality. 13. INDEMNIFICATION. Customer will
indemnify, hold harmless, and defend SIMPLII, its officers, directors, parent and/or affiliated
companies, employees, agents and subcontractors from liabilities, claims or damages and
expenses whatsoever (including reasonable attorney’s fees) arising out of or in connection with
Customer’s negligence and/or damages to SIMPLII’s tangible personal property. Customer’s
indemnification obligations do not apply to claims for damages to real or tangible personal
property or for bodily injury or death which is solely caused by SIMPLII due to SIMPLII’s gross
negligence or willful misconduct. 14. DEFAULT/TERMINATION. Customer’s use of the Services
provided herein and any equipment associated therewith will not: (a) interfere with or impair
service over SIMPLII’s network; (b) impair privacy of any communications over such network; (c)
cause damage of any nature to SIMPLII’s assets or customers; or (d) be used to frighten,
abuse, torment or harass, or create hazards to SIMPLII or its network. SIMPLII may immediately
suspend or terminate, without liability, the Services for any violation of these provisions. Except
as set forth above, if either party violates any provision of this Agreement the non-defaulting
party may send the defaulting party written notice detailing the default. The defaulting party will
have: (a) 10 days from the date of the written notice to cure a payment default, or (b) 30 days
from the date of the written notice to cure a non-payment default. If the defaulting party fails to
cure, the non-defaulting party may terminate this Agreement and any Services hereunder upon
notice or pursue any and all other legal remedies. If Customer terminates this Agreement or all
or any part of the Services at any time after the Effective Date, or if SIMPLII terminates this
Agreement as a result of Customer’s breach, SIMPLII may charge Customer an early
termination fee equal to and including any or all of the following: 75% of the total MRC,
surcharges and taxes for the Services Term then remaining, plus any unpaid activation,
installation and/or special construction charges, and all other fees or costs, whether previously
waived or not, less amounts already paid. Customer will not be liable for the early termination
fees set forth above if SIMPLII breaches the Agreement or if Customer orders from SIMPLII
services of equal or greater MRC than the Services terminated and the new services are
approved by SIMPLII. Customer acknowledges that SIMPLII’s damages for early termination
would be difficult to determine and the termination charge(s) constitutes liquidated damages and
are not intended as a penalty. All such amounts will become immediately due and payable by
Customer to SIMPLII. If Customer down turn in business occurs, Customer is still responsible
for any payments owed to SIMPLII. Contract shall be terminated between Customer and
SIMPLII upon Customer providing payments for balance owed. 15. FORCE MAJEURE. In the
event that either party’s performance is delayed, prevented, or inhibited because of any Act of
God, fire, casualty, delay or disruption in transportation, flood, war, strike, lockout, epidemic,
destruction or shut-down of facilities, shortage or curtailment, riot, insurrection, governmental
acts or directives, any full or partial failure of any communications or computer network or any
cause beyond such party’s reasonable control, the party’s performance will be excused and the
time for the performance will be extended for the period of delay or inability to perform resulting
from such occurrence. The occurrence of such an event will not constitute grounds for a
declaration of default by either party hereunder. 16. GENERAL. Any amendment must be in
writing and signed by the parties hereto. Facsimile copies of this Agreement and any
amendments or modification hereto, including facsimile signatures, will be accepted by the
parties as originals. The failure of either party to insist signatures, will be accepted by the parties
as originals. The failure of either party to insist upon the performance of any provision or to
exercise any right granted hereunder, will not be construed as a waiver of such provision(s), and
the same will continue in full force. If any provision hereof is held to be invalid, void, or
unenforceable, the remainder of the provisions will nevertheless remain unimpaired and in
effect. All notices under this Agreement will be in writing and will be made by personal delivery,
overnight delivery, certified mail or by facsimile transmission with receipt verification. Notices will
be sent to the addresses listed on the front of this Agreement and in the case of a notice to
SIMPLII, a copy to the SIMPLII Legal Department at 8619 Sandy Pkwy STE 112, Sandy, UT
84070 FAX NO. 801- 449-9801. The various rights and remedies given to or reserved by either
party herein or allowed by law, are cumulative, and no delay or omission to exercise any of its
rights will be construed as a waiver of any default or acquiescence, nor will any waiver of any
breach or any provision be considered a cancellation of any continuing or subsequent breach of
the same provision. Customer may not assign its obligations hereunder without the prior written
consent of SIMPLII, which will not be unreasonably withheld. This Agreement will be governed
by and interpreted in accordance with the laws for the state where the Services are to be
provided. Nothing in this Agreement is intended to, or shall be construed, as creating a
partnership or any 3rd party beneficiaries. The provisions of 5, 6, 8, 10, 11, 12, and 13, shall
survive termination.